Vol. 85 Wednesday, No. 102 May 27, 2020

Pages 31667–31932

OFFICE OF THE FEDERAL REGISTER

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Contents Federal Register Vol. 85, No. 102

Wednesday, May 27, 2020

Agriculture Department Commodity Futures Trading Commission See Food Safety and Inspection Service NOTICES NOTICES Agency Information Collection Activities; Proposals, Agency Information Collection Activities; Proposals, Submissions, and Approvals, 31750–31751 Submissions, and Approvals, 31736–31737 Meetings; Sunshine Act, 31751

Alcohol and Tobacco Tax and Trade Bureau Defense Department PROPOSED RULES NOTICES Proposed Establishment of the Burn of Columbia Valley Meetings: Viticultural Area, 31718–31723 Reserve Forces Policy Board, 31752–31753 Proposed Establishment of the White Bluffs Viticultural Uniform Formulary Beneficiary Advisory Panel, 31751– Area, 31723–31728 31752 Antitrust Division Education Department NOTICES NOTICES Changes Under the National Cooperative Research and Agency Information Collection Activities; Proposals, Production Act: Submissions, and Approvals: Open Mobile Alliance, 31808 Annual Report of Children in State Agency and Locally UHD Alliance, Inc., 31808 Operated Institutions for Neglected and Delinquent Children and Families Administration Children, 31755–31756 CARES Act, Recipient’s Funding Certification and NOTICES Agency Information Collection Activities; Proposals, Agreement (Institutional Aid), 31754–31755 Submissions, and Approvals: CARES Act, Recipient’s Funding Certification and Adoption Call to Action Data Collection, 31781–31782 Agreement (Student Aid), 31753–31754 Immediate Disaster Case Management Intake Assessment, Federal Direct Loan Program and Federal Family 31782–31783 Education Loan Program Teacher Loan Forgiveness Office of Refugee Resettlement Unaccompanied Refugee Forms, 31755 Minors Program Application and Withdrawal of Governor’s Emergency Education Relief Fund Application or Declination of Placement Form, 31783 Application, 31756–31757 Meetings: Civil Rights Commission National Advisory Council on Indian Education, 31753 NOTICES Meetings: Employee Benefits Security Administration New Mexico Advisory Committee, 31739 RULES Oklahoma Advisory Committee, 31739–31740 Default Electronic Disclosure by Employee Pension Benefit Wyoming Advisory Committee, 31740 Plans Under ERISA, 31884–31924

Coast Guard Energy Department RULES See Federal Energy Regulatory Commission Anchorage Grounds: RULES Lower Mississippi River Below Baton Rouge, LA, Administrative Updates to Personnel References: Including South and Southwest Passes; New Orleans, Materials Allocation and Priority Performance Under LA, 31675–31676 Contracts or Orders To Maximize Domestic Energy Person in Charge of Fuel Transfers, 31677–31690 Supplies and Energy Priorities and Allocations NOTICES System, 31667–31670 Navigation and Vessel Inspection Circular: NOTICES 01–16 Change 2—Use of Electronic Charts and Agency Information Collection Activities; Proposals, Publications in Lieu of Paper Charts, Maps and Submissions, and Approvals, 31757 Publications, 31789–31791 Port Access Route Study: Environmental Protection Agency The Areas Offshore of Massachusetts and Rhode Island, NOTICES 31792–31796 Access to Confidential Business Information: Solicitation for Members: Access Interpreting, Inc., 31775–31776 National Merchant Mariner Medical Advisory Committee, Agency Information Collection Activities; Proposals, 31791–31792 Submissions, and Approvals, 31776 Pesticide Product Registration: Commerce Department Receipt of Applications for New Active Ingredients, See International Trade Administration 31774–31775 See National Institute of Standards and Technology Receipt of Applications for Emergency Exemptions: See National Oceanic and Atmospheric Administration Dinotefuran; Solicitation of Public Comment, 31776– See Patent and Trademark Office 31777

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Federal Aviation Administration Meetings: RULES Financial Transparency and Efficiency of the Prescription Amendment of Class E Airspace: Drug User Fee Act, Biosimilar User Fee Act, and Dillon, MT, 31670–31671 Generic Drug User Fee Amendments, 31783–31785 Standard Instrument Approach Procedures, and Takeoff Minimums and Obstacle Departure Procedures: Food Safety and Inspection Service Miscellaneous Amendments, 31672–31675 NOTICES NOTICES Agency Information Collection Activities; Proposals, Meetings: Submissions, and Approvals: Commercial Space Transportation Advisory Committee, In-Home Food Safety Behaviors and Consumer 31849–31850 Education: Web-Based Survey, 31737–31739 Petition for Exemption; Summary: Airlines for America, 31850 Health and Human Services Department See Children and Families Administration Federal Communications Commission See Food and Drug Administration RULES See National Institutes of Health Expanding Flexible Use of the 3.7 to 4.2 GHz Band, 31704– NOTICES 31706 Agency Information Collection Activities; Proposals, Submissions, and Approvals, 31786–31787 Federal Deposit Insurance Corporation PROPOSED RULES Homeland Security Department Parent Companies of Industrial Banks and Industrial Loan See Coast Guard Companies: See U.S. Customs and Border Protection Extension of Comment Period, 31710 NOTICES Privacy Act; Systems of Records, 31798–31803 Federal Energy Regulatory Commission Interior Department NOTICES Application: See Land Management Bureau Golden Pass Pipeline, LLC, 31773–31774 Internal Revenue Service Combined Filings, 31757–31759, 31774 PROPOSED RULES Commission’s Policy for Determining Return on Equity, Guidance Clarifying Premium Tax Credit Unaffected by 31760–31773 Suspension of Personal Exemption Deduction, 31710– Data Collection for Analytics and Surveillance and Market- 31714 Based Rate Purposes; Extension of Time, 31758–31759 Income Tax Withholding on Certain Periodic Retirement Initial Market-Based Rate Filings Including Requests for and Annuity Payments Under Section 3405(a), 31714– Blanket Section 204 Authorizations: 31718 Whitehorn Solar, LLC, 31759 International Trade Administration Federal Housing Finance Agency NOTICES NOTICES Antidumping or Countervailing Duty Investigations, Orders, Agency Information Collection Activities; Proposals, or Reviews: Submissions, and Approvals, 31777–31780 Light-Walled Rectangular Pipe and Tube From Mexico, 31740–31742 Federal Railroad Administration Determinations of Sales at Less Than Fair Value: NOTICES Certain Cold-Drawn Mechanical Tubing of Carbon and Petition for Waiver of Compliance, 31850–31851 Alloy Steel From India, 31742–31743

Federal Reserve System International Trade Commission NOTICES NOTICES Formations of, Acquisitions by, and Mergers of Bank Investigations; Determinations, Modifications, and Rulings, Holding Companies, 31780 etc.: Certain Liquid Crystal Display Devices, Components Federal Trade Commission Thereof, and Products Containing the Same, 31807– NOTICES 31808 Agency Information Collection Activities; Proposals, Generalized System of Preferences: Possible Submissions, and Approvals, 31780–31781 Modifications, 2020 Review, 31805–31807

Food and Drug Administration Justice Department NOTICES See Antitrust Division Guidance: NOTICES Q3C(R8) Recommendations for the Permitted Daily Agency Information Collection Activities; Proposals, Exposures for Three Solvents—2- Submissions, and Approvals: Methyltetrahydrofuran, Cyclopentyl Methyl Ether, 2020 Law Enforcement Administrative and Management and Tert-Butyl Alcohol—According to the Statistics Survey, 31809–31810 Maintenance Procedures for the Guidance Q3C Meetings: Impurities: Residual Solvents; International Council National Domestic Communications Assistance Center for Harmonisation, 31785–31786 Executive Advisory Board, 31808–31809

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Labor Department Fisheries Off West Coast States: See Employee Benefits Security Administration Modifications of the West Coast Commercial Salmon See Labor Statistics Bureau Fisheries; Inseason Action No. 6, 31707–31708 See Mine Safety and Health Administration PROPOSED RULES See Occupational Safety and Health Administration Fisheries Off West Coast States: Coastal Pelagic Species Fisheries; 2020–2021 Annual Labor Statistics Bureau Specifications and Management Measures for Pacific NOTICES Sardine, 31733–31735 Discontinuation of the Lock-Up Facility for Participating NOTICES News Media Organizations with Pre-Release Access to Agency Information Collection Activities; Proposals, Statistical Information, 31810–31812 Submissions, and Approvals: West Coast Region Groundfish Trawl Fishery Electronic Land Management Bureau Monitoring Program, 31747 NOTICES Application: Environmental Impact Statement; Availability, etc: Marine Mammals; File No. 23188, 31747–31748 Proposed Blackrock Land Exchange, Bannock and Power Meetings: Counties, ID, 31804–31805 South Atlantic Fishery Management Council, 31748– Public Land Order No. 7894: 31750 Partial Revocation of a Withdrawal Created by an Takes of Marine Mammals Incidental to Specified Executive Order Dated April 17, 1926, Which Activities: Established the Public Water Reserve No. 107; Site Characterization Surveys Off the Coast of Arizona, 31804 Massachusetts, 31856–31882

Maritime Administration Nuclear Regulatory Commission NOTICES PROPOSED RULES Agency Information Collection Activities; Proposals, Voluntary Adoption of Revised Design Basis Accident Dose Submissions, and Approvals: Criteria, 31709–31710 Approval of Underwriters of Marine Hull Insurance, NOTICES 31851 Agency Information Collection Activities; Proposals, Submissions, and Approvals: Mine Safety and Health Administration License and Radiation Safety Requirements for Well- NOTICES Logging, 31814–31815 Escapeways and Refuges in Underground Metal and Licenses for Radiography and Radiation Safety Nonmetal Mines, 31812 Requirements for Radiographic Operations, 31815– 31816 National Institute of Standards and Technology Part 20 Respirator Protection Exemption Request for Non NOTICES Power Reactors/RTR and Part 20 Respirator Agency Information Collection Activities; Proposals, Protection Exemption Request for Power Reactors Submissions, and Approvals: Online Forms, 31816–31817 Manufacturing Extension Partnership Client Impact Standard Specification for the Granting of Patent Survey, 31745 Licenses, 31821–31822 Request for Personal Radiation Monitoring Services, Exemption: 31746 Exelon Generation Company, LLC; Three Mile Island Meetings: Nuclear Station, Unit 1, 31818–31821 Manufacturing Extension Partnership Advisory Board, License Amendment Application: 31746–31747 Entergy Operations Inc.; River Bend Station, Unit 1, Profile of Responsible Use of Positioning, Navigation, and 31822–31823 Timing Services, 31743–31745 Meetings; Sunshine Act, 31816 National Institutes of Health Occupational Safety and Health Administration NOTICES Meetings: NOTICES National Center for Advancing Translational Sciences, Agency Information Collection Activities; Proposals, 31788 Submissions, and Approvals: National Institute of Allergy and Infectious Diseases, The Ethylene Oxide Standard, 31812–31814 31787–31789 National Institute of Environmental Health Sciences, Patent and Trademark Office 31789 PROPOSED RULES National Institute of Nursing Research, 31788 Patent Trial and Appeal Board Rules of Practice: National Institute on Drug Abuse, 31787 Instituting on All Challenged Patent Claims and All Grounds and Eliminating the Presumption at National Oceanic and Atmospheric Administration Institution Favoring Petitioner as to Testimonial RULES Evidence, 31728–31732 Fisheries of the Northeastern United States: Atlantic Sea Scallop Fishery; 2020 Closure of the Peace Corps Northern Gulf of Maine Scallop Management Area to NOTICES the Limited Access General Category Fishery, 31706– Agency Information Collection Activities; Proposals, 31707 Submissions, and Approvals, 31823–31824

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Pension Benefit Guaranty Corporation Treasury Department NOTICES See Alcohol and Tobacco Tax and Trade Bureau Agency Information Collection Activities; Proposals, See Internal Revenue Service Submissions, and Approvals: See United States Mint Generic Clearance for the Collection of Qualitative NOTICES Feedback on Agency Service Delivery, 31824–31825 Agency Information Collection Activities; Proposals, Submissions, and Approvals, 31852 Postal Regulatory Commission NOTICES U.S. Customs and Border Protection New Postal Product, 31825–31826 NOTICES Western Hemisphere Travel Initiative: Presidential Documents Designation of an Approved Native American Tribal Card PROCLAMATIONS Issued by the Confederated Tribes of the Colville Special Observances: Reservation as an Acceptable Document To Denote Honoring the Victims of the Novel Coronavirus Pandemic Identity and Citizenship for Entry in the United (Proc. 10039), 31929 States at Land and Sea Ports of Entry, 31796–31798 National Maritime Day (Proc. 10038), 31925–31928 Prayer for Peace, Memorial Day (Proc. 10040), 31931– United States Mint 31932 NOTICES Meetings: Securities and Exchange Commission Citizens Coinage Advisory Committee; Teleconference, NOTICES 31853 Meetings; Sunshine Act, 31843–31844 Request for Membership Applications: Program for Allocation of Regulatory Responsibilities: Citizens Coinage Advisory Committee, 31852–31853 Financial Industry Regulatory Authority, Inc. and MEMX, LLC, 31838–31843 Veterans Affairs Department Self-Regulatory Organizations; Proposed Rule Changes: RULES Financial Industry Regulatory Authority, Inc., 31832– Informed Consent and Advance Directives, 31690–31704 31836 NOTICES Fixed Income Clearing Corp., 31837–31838 Agency Information Collection Activities; Proposals, NYSE Arca, Inc., 31826–31828 Submissions, and Approvals, 31853–31854 The Depository Trust Co.; Fixed Income Clearing Corp.; National Securities Clearing Corp., 31828–31832 Separate Parts In This Issue Small Business Administration NOTICES Part II Major Disaster Declaration: Commerce Department, National Oceanic and Atmospheric Oregon, 31844 Administration, 31856–31882

State Department Part III NOTICES Labor Department, Employee Benefits Security Certification Pursuant to the Department of State, Foreign Administration, 31884–31924 Operations, and Related Programs Appropriations Act, 2020, 31844–31845 Part IV Certification Pursuant to the Nicaragua Human Rights and Presidential Documents, 31925–31929, 31931–31932 Anticorruption Act Of 2018, 31844

Trade Representative, Office of United States NOTICES Reader Aids Agency Information Collection Activities; Proposals, Consult the Reader Aids section at the end of this issue for Submissions, and Approvals: phone numbers, online resources, finding aids, and notice Large Civil Aircraft Dispute Portal, 31845–31849 of recently enacted public laws. To subscribe to the Federal Register Table of Contents Transportation Department electronic mailing list, go to https://public.govdelivery.com/ See Federal Aviation Administration accounts/USGPOOFR/subscriber/new, enter your e-mail See Federal Railroad Administration address, then follow the instructions to join, leave, or See Maritime Administration manage your subscription.

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CFR PARTS AFFECTED IN THIS ISSUE

A cumulative list of the parts affected this month can be found in the Reader Aids section at the end of this issue.

3 CFR Proclamations: 10038...... 31927 10039...... 31929 10040...... 31931 10 CFR 216...... 31667 217...... 31667 Proposed Rules: 50...... 31709 12 CFR Proposed Rules: 354...... 31710 14 CFR 71...... 31670 97 (2 documents) ...... 31672, 31674 26 CFR Proposed Rules: 1...... 31710 31...... 31714 35...... 31714 27 CFR Proposed Rules: 9 (2 documents) ...... 31718, 31723 29 CFR 2520...... 31884 2560...... 31884 33 CFR 110...... 31675 155...... 31677 37 CFR Proposed Rules: 42...... 31728 38 CFR 17...... 31690 47 CFR 27...... 31704 50 CFR 648...... 31706 660...... 31707 Proposed Rules: 660...... 31733

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Rules and Regulations Federal Register Vol. 85, No. 102

Wednesday, May 27, 2020

This section of the FEDERAL REGISTER A. Review Under Executive Order 12866 Energy Restoration’’ with ‘‘Office of contains regulatory documents having general B. Review Under Executive Orders 13771 Electricity’’, and clarifying that the applicability and legal effect, most of which and 13777 ‘‘Assistant Secretary, Office of are keyed to and codified in the Code of C. Review Under the National Environmental Policy Act of 1969 Electricity’’ is the person within the Federal Regulations, which is published under Office of Electricity who will make 50 titles pursuant to 44 U.S.C. 1510. D. Review Under the Regulatory Flexibility Act determinations regarding appeals. The Code of Federal Regulations is sold by E. Review Under the Paperwork Reduction II. Final Rulemaking the Superintendent of Documents. Act of 1995 F. Review Under the Unfunded Mandates In accordance with the Reform Act of 1995 Administrative Procedure Act, DEPARTMENT OF ENERGY G. Review Under the Treasury and General specifically 5 U.S.C. 553(b), DOE Government Appropriations Act, 1999 generally publishes a rule in a proposed 10 CFR Parts 216 and 217 H. Review Under Executive Order 13132 I. Review Under Executive Order 12988 form and solicits public comment on it RIN 1901–AB52 J. Review Under the Treasury and General before issuing the rule in final. Government Appropriations Act, 2001 However, 5 U.S.C. 553(b)(B) provides an Materials Allocation and Priority K. Review Under Executive Order 13211 exception to the public comment Performance Under Contracts or L. Congressional Notification requirement if the agency finds good Orders To Maximize Domestic Energy IV. Approval of the Office of the Secretary cause to omit advance notice and public Supplies and Energy Priorities and I. Background and Summary of Final participation. Good cause is shown Allocations System; Administrative Rule when public comment is Updates to Personnel References ‘‘impracticable, unnecessary, or contrary The regulations at 10 CFR part 216 to the public interest.’’ AGENCY: Office of Electricity, U.S. describe and establish procedures to be For the aforementioned Department of Energy. used by the Department of Energy (DOE) administrative updates, DOE finds that ACTION: Final rule. in considering and making certain providing an opportunity for public findings required by section 101(c)(2)(A) comment prior to publication of this SUMMARY: The Department of Energy of the Defense Production Act of 1950, rule is not necessary because DOE is (DOE) publishes this final rule to update as amended (DPA) (50 U.S.C. carrying out an administrative change personnel references within DOE’s 4511(c)(2)(A)). These regulations were that does not substantively alter the Office of Electricity and update an email last updated in February of 2008. The existing 10 CFR part 216 or part 217 address that is no longer in use. This regulations at 10 CFR part 217 provide regulatory framework. For the same final rule is needed to conform to the guidance and procedures for use of the reason, DOE is waiving the 30-day delay current organizational structure within priorities and allocations authority in in effective date. DOE’s Office of Electricity and does not section 101(a) of the DPA (50 U.S.C. otherwise substantively change the 4511(a)) with respect to all forms of III. Regulatory Review current regulations. energy necessary or appropriate to A. Review Under Executive Order 12866 DATES: promote the national defense. These This rule is effective May 27, This final rule has been determined 2020. regulations were last updated in June of 2011. Since then, the organizational not to be a ‘‘significant regulatory FOR FURTHER INFORMATION CONTACT: Mr. structure in DOE’s Office of Electricity action’’ under section 3(f) of Executive Christopher A. Lawrence, Program and has changed. The administrative Order 12866, ‘‘Regulatory Planning and Management Analyst, Transmission updates to personnel references in this Review,’’ 58 FR 51735 (Oct. 4, 1993). Permitting and Technical Assistance, final rule are needed to conform to the Accordingly, this action was not subject Office of Electricity (OE–20), U.S. current organizational structure within to review under that Executive Order by Department of Energy, Washington, DC, DOE’s Office of Electricity and update the Office of Information and Regulatory (202) 586–5260 or an email address that is no longer in Affairs (OIRA) in the Office of [email protected]; Mr. use. Specifically, this final rule revises Management and Budget (OMB). Christopher Drake, Attorney-Adviser, DOE regulations at 10 CFR part 216 by B. Review Under Executive Orders Office of the Assistant General Counsel replacing ‘‘Office of Electricity and 13771 and 13777 for Electricity and Fossil Energy (GC– Energy Assurance, OE–30’’ with ‘‘Office 76), U.S. Department of Energy, of Electricity’’. This final rule also On January 30, 2017, the President Washington, DC, (202) 586–2919 or revises DOE regulations at 10 CFR part issued Executive Order 13771, [email protected]; Mrs. 217 by changing certain references of ‘‘Reducing Regulation and Controlling Kavita Vaidyanathan, Attorney-Adviser, ‘‘Senior Policy Advisor for the Office of Regulatory Costs.’’ That Order stated Office of the Assistant General Counsel Electricity Delivery and Energy that the policy of the executive branch for Electricity and Fossil Energy (GC– Reliability’’ to ‘‘Deputy Assistant is to be prudent and financially 76), U.S. Department of Energy, Secretary overseeing the Defense responsible in the expenditure of funds, from both public and private sources. Washington, DC, (202) 586–0669 or Production Act program’’,1 replacing The Order stated that it is essential to [email protected]. ‘‘Office of Infrastructure Security and SUPPLEMENTARY INFORMATION: manage the costs associated with the I. Background and Summary of Final Rule 1 As of this rulemaking, this official is the Deputy governmental imposition of private II. Final Rulemaking Assistant Secretary, Transmission Permitting and expenditures required to comply with III. Regulatory Review Technical Assistance. Federal regulations.

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Additionally, on February 24, 2017, D. Review Under the Regulatory governments. On March 18, 1997, DOE the President issued Executive Order Flexibility Act published a statement of policy on its 13777, ‘‘Enforcing the Regulatory The Regulatory Flexibility Act (5 process for intergovernmental Reform Agenda.’’ The Order required U.S.C. 601 et seq.) requires preparation consultation under UMRA. 62 FR the head of each agency to designate an of an initial regulatory flexibility 12820; available at: https:// agency official as its Regulatory Reform www.energy.gov/sites/prod/files/gcprod/ analysis for any rule that by law must _ Officer (RRO). Each RRO oversees the be proposed for public comment, unless documents/umra 97.pdf. implementation of regulatory reform the agency certifies that the rule, if UMRA sections 202 and 205 do not initiatives and policies to ensure that promulgated, will not have a significant apply to this action because they apply agencies effectively carry out regulatory economic impact on a substantial only to rules for which a general notice reforms, consistent with applicable law. number of small entities. As required by of proposed rulemaking is published. Further, E.O. 13777 requires the Executive Order 13272, ‘‘Proper Nevertheless, DOE has determined that establishment of a regulatory task force Consideration of Small Entities in this final rule contains neither an at each agency. The regulatory task force Agency Rulemaking,’’ 67 FR 53461 intergovernmental mandate, nor a is required to make recommendations to (Aug. 16, 2002), DOE published mandate that may result in the the agency head regarding the repeal, procedures and policies on February 19, expenditure of $100 million or more in replacement, or modification of existing 2003, to ensure that the potential any year. regulations, consistent with applicable impacts of its rules on small entities are G. Review Under the Treasury and law. At a minimum, each regulatory properly considered during the DOE reform task force must attempt to General Government Appropriations rulemaking process. 68 FR 7990. DOE Act, 1999 identify regulations that: has made its procedures and policies (i) Eliminate jobs, or inhibit job available on the Office of the General Section 654 of the Treasury and creation; Counsel’s website: http://energy.gov/gc/ General Government Appropriations (ii) Are outdated, unnecessary, or office-general-counsel. As discussed Act, 1999 (Pub. L. 105–277), requires ineffective; above, DOE has determined that prior Federal agencies to issue a Family (iii) Impose costs that exceed benefits; notice and opportunity for public Policymaking Assessment for any (iv) Create a serious inconsistency or comment is unnecessary for this final proposed rule that may affect family otherwise interfere with regulatory rule. In accordance with 5 U.S.C. 604(a), well-being. This final rule would not reform initiatives and policies; no regulatory flexibility analysis has have any impact on the autonomy or (v) Are inconsistent with the been prepared for this rule. integrity of the family as an institution. requirements of the Information Quality Accordingly, DOE has concluded that it Act, or the guidance issued pursuant to E. Review Under the Paperwork is not necessary to prepare a Family that Act, particularly those regulations Reduction Act of 1995 Policymaking Assessment. that rely in whole or in part on data, This final rule imposes no new H. Review Under Executive Order 13132 information, or methods that are not information collection requirements publicly available or that are subject to the Paperwork Reduction Act. Executive Order 13132, ‘‘Federalism,’’ insufficiently transparent to meet the 64 FR 43255 (Aug. 4, 1999), imposes standard for reproducibility; or F. Review Under the Unfunded certain requirements on agencies (vi) Derive from or implement Mandates Reform Act of 1995 formulating and implementing policies Executive Orders or other Presidential Title II of the Unfunded Mandates or regulations that preempt State law or directives that have been subsequently Reform Act of 1995 (UMRA) requires that have federalism implications. The rescinded or substantially modified. each Federal agency to assess the effects Executive Order requires agencies to DOE concludes that this final rule is of Federal regulatory actions on State, examine the constitutional and statutory consistent with the directives set forth local, and Tribal governments and the authority supporting any action that in these executive orders. This final rule private sector. Public Law 104–4, sec. would limit the policymaking discretion does not substantively change the 201 (codified at 2 U.S.C. 1531). For a of the States and carefully assess the existing regulations and is intended proposed regulatory action likely to necessity for such actions. The only to make personnel references in the result in a rule that may cause the Executive Order also requires agencies regulations at 10 CFR parts 216 and 217 expenditure by State, local, and Tribal to have an accountable process to consistent with changes in the governments, in the aggregate, or by the ensure meaningful and timely input by organizational structure of DOE’s Office private sector of $100 million or more State and local officials in the of Electricity. in any one year (adjusted annually for development of regulatory policies that inflation), section 202 of UMRA requires have Federalism implications. On C. Review Under the National a Federal agency to publish a written March 14, 2000, DOE published a Environmental Policy Act of 1969 statement that estimates the resulting statement of policy describing the DOE has determined that this final costs, benefits, and other effects on the intergovernmental consultation process rule is covered under the Categorical national economy. 2 U.S.C. 1532(a), (b). it will follow in the development of Exclusion found in DOE’s National UMRA also requires a Federal agency to such regulations. 65 FR 13735. DOE has Environmental Policy Act regulations at develop an effective process to permit examined this rule and has determined paragraph A.5 of appendix A to subpart timely input by elected officers of State, that it would not preempt State law and D, 10 CFR part 1021, which applies to local, and Tribal governments on a would not have a substantial direct a rulemaking that amends an existing proposed ‘‘significant intergovernmental effect on the States, on the relationship rule or regulation and that does not mandate,’’ and requires an agency plan between the national government and change the environmental effect of the for giving notice and opportunity for the States, or on the distribution of rule or regulation being amended. timely input to potentially affected power and responsibilities among the Accordingly, neither an environmental small governments before establishing various levels of government. No further assessment nor an environmental any requirements that might action is required by Executive Order impact statement is required. significantly or uniquely affect small 13132.

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I. Review Under Executive Order 12988 Distribution, or Use,’’ 66 FR 28355 (May Signing Authority With respect to the review of existing 22, 2001), requires Federal agencies to This document of the Department of regulations and the promulgation of prepare and submit to OMB a Statement Energy was signed on April 27, 2020, by new regulations, section 3(a) of of Energy Effects for any proposed Bruce J. Walker, Assistant Secretary, Executive Order 12988, ‘‘Civil Justice significant energy action. A ‘‘significant Office of Electricity, pursuant to Reform,’’ 61 FR 4729 (Feb. 7, 1996), energy action’’ is defined as any action delegated authority from the Secretary imposes on Executive agencies the by an agency that promulgated or is of Energy. That document with the general duty to adhere to the following expected to lead to promulgation of a original signature and date is requirements: (1) Eliminate drafting final rule or regulation, and that: (1) Is maintained by DOE. For administrative errors and ambiguity; (2) write a significant regulatory action under purposes only, and in compliance with regulations to minimize litigation; and Executive Order 12866, or any successor requirements of the Office of the Federal (3) provide a clear legal standard for order; and (2) is likely to have a Register, the undersigned DOE Federal affected conduct rather than a general significant adverse effect on the supply, Register Liaison Officer has been standard and promote simplification distribution, or use of energy, or (3) is authorized to sign and submit the and burden reduction. With regard to designated by the Administrator of document in electronic format for the review required by section 3(a), OIRA as a significant energy action. For publication, as an official document of section 3(b) of Executive Order 12988 any proposed significant energy action, the Department of Energy. This specifically requires that Executive the agency must give a detailed administrative process in no way alters agencies make every reasonable effort to statement of any adverse effects on the legal effect of this document upon ensure that the regulation: (1) Clearly energy supply, distribution, or use publication in the Federal Register. specifies the preemptive effect, if any; should the proposal be implemented, and of reasonable alternatives to the Signed in Washington, DC, on April 27, (2) clearly specifies any effect on 2020. existing Federal law or regulation; (3) action and their expected benefits on energy supply, distribution, and use. Treena V. Garrett, provides a clear legal standard for Federal Register Liaison Officer, U.S. affected conduct while promoting This final rule is not a significant Department of Energy. simplification and burden reduction; (4) regulatory action under Executive Order specifies the retroactive effect, if any; (5) 12866. Moreover, it would not have a For the reasons stated in the adequately defines key terms; and (6) significant adverse effect on the supply, preamble, DOE amends parts 216 and addresses other important issues distribution, or use of energy, nor has it 217 of chapter II of title 10 of the Code affecting clarity and general been designated as a significant energy of Federal Regulations as set forth draftsmanship under any guidelines action by the Administrator of OIRA. below: issued by the Attorney General. Section Therefore, it is not a significant energy PART 216—MATERIALS ALLOCATION 3(c) of Executive Order 12988 requires action, and, accordingly, DOE has not AND PRIORITY PERFORMANCE Executive agencies to review regulations prepared a Statement of Energy Effects. UNDER CONTRACTS OR ORDERS TO in light of applicable standards in MAXIMIZE DOMESTIC ENERGY section 3(a) and section 3(b) to L. Congressional Notification SUPPLIES determine whether they are met or it is As required by 5 U.S.C. 801, DOE will unreasonable to meet one or more of submit to Congress a report regarding ■ 1. The authority citation for part 216 them. DOE has completed the required the issuance of this final rule prior to is revised to read as follows: review and determined that, to the the effective date set forth at the outset Authority: Section 104 of the Energy Policy extent permitted by law, this rule meets of this rulemaking. The report will state the relevant standards of Executive and Conservation Act (EPCA), Pub. L. 94– that it has been determined that the rule 163, 89 Stat. 871; section 101(c) of the Order 12988. is not a ‘‘major rule’’ as defined by 5 Defense Production Act of 1950, 50 U.S.C. J. Review Under the Treasury and U.S.C. 801(2). 4511(c); E.O. 12919, 59 FR 29525 (June 7, 1994); E.O. 13286, 68 FR 10619 (March 5, General Government Appropriations IV. Approval of the Office of the Act, 2001 2003); 15 CFR part 700; Defense Priorities Secretary and Allocations System Delegation No. 2 Section 515 of the Treasury and (Aug. 6, 2002), as amended at 15 CFR part General Government Appropriations The Secretary of Energy has approved 700. Act, 2001 (44 U.S.C. 3516 note), publication of this final rule. § 216.2 [Amended] provides for agencies to review most List of Subjects disseminations of information to the ■ 2. Section 216.2(h) is amended by public under guidelines established by 10 CFR Part 216 removing the words ‘‘Office of each agency pursuant to general Electricity and Energy Assurance, OE– guidelines issued by OMB. OMB’s Administrative practice and 30’’ and adding in their place, the words guidelines were published at 67 FR procedure, Business and industry, ‘‘Office of Electricity’’. 8452 (Feb. 22, 2002), and DOE’s Energy, Government contracts, National § 216.3 [Amended] guidelines were published at 67 FR defense, Reporting and recordkeeping 62446 (Oct. 7, 2002). DOE has reviewed requirements, Strategic and critical ■ 3. Section 216.3(a) is amended by this final rule under the OMB and DOE materials. removing the words ‘‘Office of guidelines and has concluded that it is 10 CFR Part 217 Electricity and Energy Assurance, OE– consistent with applicable policies in 30,’’ and adding, in their place, the those guidelines. Administrative practice and words ‘‘Office of Electricity,’’. procedure, Business and industry, K. Review Under Executive Order 13211 Energy, Government contracts, National § 216.8 [Amended] Executive Order 13211, ‘‘Actions defense, Reporting and recordkeeping ■ 4. Section 216.8 is amended by Concerning Regulations That requirements, Strategic and critical removing the words ‘‘Office of Significantly Affect Energy Supply, materials. Electricity and Energy Assurance, OE–

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30,’’ and adding in their place, the and Energy Restoration’’ and adding in 7400.11 and publication of conforming words ‘‘Office of Electricity,’’. their place, the words ‘‘Assistant amendments. Secretary, Office of Electricity’’. ADDRESSES: FAA Order 7400.11D, PART 217—ENERGY PRIORITIES AND ■ 10. Section 217.93 is revised to read Airspace Designations and Reporting ALLOCATIONS SYSTEM as follows: Points, and subsequent amendments can ■ be viewed online at https:// 5. The authority citation for part 217 § 217.93 Communications. _ is revised to read as follows: www.faa.gov//air traffic/publications/. All communications concerning this For further information, you can contact Authority: Defense Production Act of 1950, part, including requests for copies of the the Airspace Policy Group, Federal as amended, 50 U.S.C. 4501–4568; E.O. regulation and explanatory information, Aviation Administration, 800 12919, as amended, (59 FR 29525 June 7, requests for guidance or clarification, 1994). Independence Avenue SW, Washington, and requests for adjustment or DC 20591; telephone: (202) 267–8783. § 217.40 [Amended] exception shall be addressed to the The Order is also available for Deputy Assistant Secretary of the ■ inspection at the National Archives and 6. In § 217.40: Department of Energy overseeing the ■ Records Administration (NARA). For a. Amend paragraphs (a) and (c) by Defense Production Act program, U.S. removing the words ‘‘Senior Policy information on the availability of FAA Department of Energy, 1000 Order 7400.11D at NARA, email Advisor for the Office of Electricity Independence Ave. SW, Washington, Delivery and Energy Reliability’’ and [email protected] or go to https:// DC 20585; (202) 586–1411 (AskOE@ www.archives.gov/federal-register/cfr/ adding in their place, the words hq.doe.gov). ‘‘Deputy Assistant Secretary of the ibr-locations.html. Department of Energy overseeing the [FR Doc. 2020–09247 Filed 5–26–20; 8:45 am] FOR FURTHER INFORMATION CONTACT: Defense Production Act program’’. BILLING CODE 6450–01–P Matthew Van Der Wal, Federal Aviation ■ b. Amend paragraph (a) by removing Administration, Western Service Center, the words ‘‘Office of Infrastructure Operations Support Group, 2200 S Security and Energy Restoration’’ and DEPARTMENT OF TRANSPORTATION 216th Street, Des Moines, WA 98198; adding, in their place, the words ‘‘Office telephone (206) 231–3695. Federal Aviation Administration of Electricity’’. SUPPLEMENTARY INFORMATION: § 217.72 [Amended] 14 CFR Part 71 Authority for This Rulemaking ■ 7. Section 217.72(b) is amended by [Docket No. FAA–2019–0874; Airspace The FAA’s authority to issue rules removing the words ‘‘Senior Policy Docket No. 18–ANM–6] regarding aviation safety is found in Advisor for the Office of Electricity Title 49 of the United States Code. RIN 2120–AA66 Delivery and Energy Reliability’’ and Subtitle I, Section 106 describes the adding, in their place, the words Amendment of Class E Airspace; authority of the FAA Administrator. ‘‘Deputy Assistant Secretary of the Dillon, MT Subtitle VII, Aviation Programs, Department of Energy overseeing the describes in more detail the scope of the Defense Production Act program’’. AGENCY: Federal Aviation agency’s authority. This rulemaking is Administration (FAA), DOT. promulgated under the authority § 217.80 [Amended] ACTION: Final rule. described in Subtitle VII, Part A, ■ 8. In § 217.80: Subpart I, Section 40103. Under that ■ a. Amend paragraphs (a), (c) and (d) SUMMARY: This action amends Class E section, the FAA is charged with by removing the words ‘‘Senior Policy airspace, designated as a surface area, at prescribing regulations to assign the use Advisor for the Office of Electricity Dillon Airport, Dillon, MT. This action of airspace necessary to ensure the Delivery and Energy Reliability’’ and reduces the radius of the airspace and safety of aircraft and the efficient use of adding, in their place the words adds an extension to the northeast of the airspace. This regulation is within the ‘‘Deputy Assistant Secretary of the airport. This action also amends the scope of that authority as it amends Department of Energy overseeing the Class E airspace extending upward from Class E airspace at Dillon Airport, Defense Production Act program’’. 700 feet above the surface, the action Dillon, MT, to ensure the safety and ■ b. Amend paragraph (d) by removing reduces the circular radius around the management of Instrument Flight Rules the words ‘‘Office of Infrastructure airport and adds an extension to the (IFR) operations at the airport. Security and Energy Restoration’’ and southwest of the airport and an adding in their place, the words extension to the north of the airport. History ‘‘Assistant Secretary, Office of Additionally, this action amends the The FAA published a notice of Electricity’’. Class E airspace extending upward from proposed rulemaking in the Federal 1,200 feet above the surface. The action Register (85 FR 13080; March 6, 2020) § 217.81 [Amended] significantly reduces the dimensions of for Docket No. FAA–2019–0874 to ■ 9. In § 217.81: the area to properly size it to contain amend Class E airspace at Dillon ■ a. Amend paragraphs (a), (b)(1) and IFR aircraft transitioning to/from the Airport, Dillon, MT. Interested parties (b)(2) removing the words ‘‘Senior terminal or en route environments. were invited to participate in this Policy Advisor for the Office of Lastly, this action implements an rulemaking effort by submitting written Electricity Delivery and Energy administrative correction to the Class E comments on the proposal to the FAA. Reliability’’ and adding, in their place, airspace designated as a surface area. No comments were received. the words ‘‘Deputy Assistant Secretary DATES: Effective 0901 UTC, September After the NPRM comment period of the Department of Energy overseeing 10, 2020. The Director of the Federal closed, the FAA identified an error in the Defense Production Act program’’. Register approves this incorporation by the proposed Class E airspace extending ■ b. Amend paragraphs (a), (b)(1), (b)(2), reference action under Title 1 Code of upward from 1,200 feet above the (d), (e), (f), (g) and (h) by removing the Federal Regulations part 51, subject to surface. The proposal stated the area words ‘‘Office of Infrastructure Security the annual revision of FAA Order should be reduced from a 45-mile radius

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to an 8-mile radius of the airport. mile radius to a 25-mile radius of the PART 71—DESIGNATION OF CLASS A, However, to properly contain IFR airport. B, C, D, AND E AIRSPACE AREAS; AIR aircraft transitioning to/from the Lastly, this action implements an TRAFFIC SERVICE ROUTES; AND terminal or en route environment, this administrative correction to the Class E REPORTING POINTS area should be reduced to a 25-mile airspace designated as a surface area. radius of the airport. The Final Rule This area is full time and the following ■ 1. The authority citation for 14 CFR includes a correction to the airspace two sentences do not accurately part 71 continues to read as follows: area. represent the time of use and are Authority: 49 U.S.C. 106(f), 106(g), 40103, Class E2 and E5 airspace designations removed: ‘‘This Class E airspace area is 40113, 40120; E.O. 10854, 24 FR 9565, 3 CFR, are published in paragraphs 6002 and effective during specific dates and times 1959–1963 Comp., p. 389. 6005, respectively, of FAA Order established in advance by a Notice to 7400.11D, dated August 8, 2019, and Airmen. The effective date and time will effective September 15, 2019, which is § 71.1 [Amended] thereafter be continuously published in incorporated by reference in 14 CFR the Airport/Facility Directory.’’ ■ 2. The incorporation by reference in 71.1. The Class E airspace designation FAA Order 7400.11, Airspace 14 CFR 71.1 of FAA Order 7400.11D, listed in this document will be Airspace Designations and Reporting published subsequently in the Order. Designations and Reporting Points, is published yearly and effective on Points, dated August 8, 2019, and Availability and Summary of September 15. effective September 15, 2019, is Documents for Incorporation by amended as follows: Reference Regulatory Notices and Analyses Paragraph 6002 Class E Airspace Areas This document amends FAA Order The FAA has determined that this Designated as Surface Areas. 7400.11D, Airspace Designations and regulation only involves an established * * * * * Reporting Points, dated August 8, 2019, body of technical regulations for which and effective September 15, 2019. FAA frequent and routine amendments are ANM MT E2 Dillon, MT [Amended] Order 7400.11D is publicly available as necessary to keep them operationally Dillon Airport, MT listed in the ADDRESSES section of this current, is non-controversial, and (Lat. 45°15′19″ N, long. 112°33′09″ W) document. FAA Order 7400.11D lists unlikely to result in adverse or negative That airspace extending upward from the Class A, B, C, D, and E airspace areas, comments. It, therefore: (1) Is not a surface within a 5.2-mile radius of the air traffic service routes, and reporting ‘‘significant regulatory action’’ under airport, and within 2.4 miles each side of the points. Executive Order 12866; (2) is not a 026° bearing from the airport, extending from The Rule ‘‘significant rule’’ under DOT the 5.2-mile radius to 6.8 miles northeast of Regulatory Policies and Procedures (44 Dillon Airport. This amendment to Title 14 Code of FR 11034; February 26, 1979); and (3) Federal Regulations (14 CFR) part 71 does not warrant preparation of a Paragraph 6005 Class E Airspace Areas amends the Class E airspace, designated regulatory evaluation as the anticipated Extending Upward From 700 Feet or More Above the Surface of the Earth. as a surface area, at Dillon Airport, impact is so minimal. Since this is a Dillon, MT. The action reduces the area routine matter that will only affect air * * * * * from a 6.1-mile radius to a 5.2-mile traffic procedures and air navigation, it ANM MT E5 Dillon, MT [Amended] radius of the airport and adds an is certified that this rule, when extension northeast of the airport. This promulgated, would not have a Dillon Airport, MT (Lat. 45°15′19″ N, long. 112°33′09″ W) area is described as follows: That significant economic impact on a airspace extending upward from the substantial number of small entities That airspace extending upward from 700 surface within a 5.2-mile radius of the under the criteria of the Regulatory feet above the surface within a 5.2-mile airport, and with 2.4 miles each side of Flexibility Act. radius of the airport, and within 3 miles each the 026° bearing from the airport, side of the 205° bearing from the airport, extending from the 5.2-mile radius to Environmental Review extending from the 5.2-mile radius to 9.9 6.8 miles northeast of Dillon Airport. miles southwest of the airport, and that Also, this action amends Class E The FAA has determined that this airspace within 8 miles west and 4 miles east airspace extending upward from 700 action qualifies for categorical exclusion of the 005° bearing from the airport, feet above the surface. This area is under the National Environmental extending from the 5.2-mile radius to 16 reconfigured a 9.2-mile radius of the Policy Act in accordance with FAA miles north of the airport; and that airspace airport to a 5.2-mile radius of the Order 1050.1F, ‘‘Environmental extending upward from 1,200 feet above the airport, with extensions southwest and Impacts: Policies and Procedures,’’ surface within a 25-mile radius of Dillon north of the airport. This area is paragraph 5–6.5a. This airspace action Airport. is not expected to cause any potentially described as follows: That airspace Issued in Seattle, Washington, on May 20, extending upward from 700 feet above significant environmental impacts, and no extraordinary circumstances exist 2020. the surface within a 5.2-mile radius of Shawn M. Kozica the airport, and within 3 miles each side that warrant preparation of an of the 205° bearing from the airport, environmental assessment. Group Manager, Western Service Center, Operations Support Group. extending from the 5.2-mile radius to List of Subjects in 14 CFR Part 71 9.9 miles southwest of the airport, and [FR Doc. 2020–11232 Filed 5–26–20; 8:45 am] within eight miles west and four miles Airspace, Incorporation by reference, BILLING CODE 4910–13–P east of the 005° bearing from the airport, Navigation (air). extending from the 5.2-mile radius to 16 Adoption of the Amendment miles north of Dillon Airport. Additionally, this action amends the In consideration of the foregoing, the Class E airspace extending upward from Federal Aviation Administration 1,200 feet above the surface from a 45- amends 14 CFR part 71 as follows:

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DEPARTMENT OF TRANSPORTATION Availability The Rule Federal Aviation Administration All SIAPs and Takeoff Minimums and This amendment to 14 CFR part 97 is ODPs are available online free of charge. effective upon publication of each 14 CFR Part 97 Visit the National Flight Data Center separate SIAP and Takeoff Minimums online at nfdc.faa.gov to register. and ODP as amended in the transmittal. For safety and timeliness of change [Docket No. 31313; Amdt. No. 3906] Additionally, individual SIAP and Takeoff Minimums and ODP copies may considerations, this amendment Standard Instrument Approach be obtained from the FAA Air Traffic incorporates only specific changes Procedures, and Takeoff Minimums Organization Service Area in which the contained for each SIAP and Takeoff and Obstacle Departure Procedures; affected airport is located. Minimums and ODP as modified by Miscellaneous Amendments FDC permanent NOTAMs. FOR FURTHER INFORMATION CONTACT: The SIAPs and Takeoff Minimums AGENCY: Federal Aviation Thomas J. Nichols, Flight Procedures and ODPs, as modified by FDC Administration (FAA), DOT. and Airspace Group, Flight permanent NOTAM, and contained in Technologies and Procedures Division, ACTION: Final rule. this amendment are based on the Flight Standards Service, Federal criteria contained in the U.S. Standard SUMMARY: This rule amends, suspends, Aviation Administration. Mailing for Terminal Instrument Procedures or removes Standard Instrument Address: FAA Mike Monroney (TERPS). In developing these changes to Approach Procedures (SIAPs) and Aeronautical Center, Flight Procedures SIAPs and Takeoff Minimums and associated Takeoff Minimums and and Airspace Group, 6500 South ODPs, the TERPS criteria were applied Obstacle Departure Procedures for MacArthur Blvd., Registry Bldg 29, only to specific conditions existing at operations at certain airports. These Room 104, Oklahoma City, OK 73169. the affected airports. All SIAP regulatory actions are needed because of Telephone: (405) 954–4164. amendments in this rule have been the adoption of new or revised criteria, SUPPLEMENTARY INFORMATION: This rule previously issued by the FAA in a FDC or because of changes occurring in the amends Title 14, Code of Federal NOTAM as an emergency action of National Airspace System, such as the Regulations, Part 97 (14 CFR part 97) by immediate flight safety relating directly commissioning of new navigational amending the referenced SIAPs. to published aeronautical charts. facilities, adding new obstacles, or The circumstances that created the The complete regulatory description changing air traffic requirements. These need for these SIAP and Takeoff of each SIAP is listed on the appropriate changes are designed to provide for the Minimums and ODP amendments FAA Form 8260, as modified by the safe and efficient use of the navigable require making them effective in less National Flight Data Center (NFDC)/ airspace and to promote safe flight than 30 days. Permanent Notice to Airmen (P- operations under instrument flight rules Because of the close and immediate at the affected airports. NOTAM), and is incorporated by reference under 5 U.S.C. 552(a), 1 CFR relationship between these SIAPs, DATES: This rule is effective May 27, Takeoff Minimums and ODPs, and part 51, and 14 CFR 97.20. The large 2020. The compliance date for each safety in air commerce, I find that notice number of SIAPs, their complex nature, SIAP, associated Takeoff Minimums, and public procedure under 5 U.S.C. and the need for a special format make and ODP is specified in the amendatory 553(b) are impracticable and contrary to their verbatim publication in the provisions. the public interest and, where Federal Register expensive and The incorporation by reference of applicable, under 5 U.S.C. 553(d), good impractical. Further, airmen do not use certain publications listed in the cause exists for making these SIAPs the regulatory text of the SIAPs, but regulations is approved by the Director effective in less than 30 days. refer to their graphic depiction on charts of the Federal Register as of May 27, The FAA has determined that this 2020. printed by publishers of aeronautical materials. Thus, the advantages of regulation only involves an established ADDRESSES: Availability of matter incorporation by reference are realized body of technical regulations for which incorporated by reference in the and publication of the complete frequent and routine amendments are amendment is as follows: description of each SIAP contained on necessary to keep them operationally FAA form documents is unnecessary. current. It, therefore—(1) is not a For Examination ‘‘significant regulatory action’’ under This amendment provides the affected Executive Order 12866; (2) is not a 1. U.S. Department of Transportation, CFR sections, and specifies the SIAPs ‘‘significant rule’’ under DOT regulatory Docket Ops–M30, 1200 New Jersey and Takeoff Minimums and ODPs with Policies and Procedures (44 FR 11034; Avenue SE, West Bldg., Ground Floor, their applicable effective dates. This February 26, 1979); and (3) does not Washington, DC 20590–0001; amendment also identifies the airport warrant preparation of a regulatory 2. The FAA Air Traffic Organization and its location, the procedure and the evaluation as the anticipated impact is Service Area in which the affected amendment number. airport is located; so minimal. 3. The office of Aeronautical Availability and Summary of Material For the same reason, the FAA certifies Navigation Products, 6500 South Incorporated by Reference that this amendment will not have a MacArthur Blvd., Oklahoma City, OK significant economic impact on a 73169 or, The material incorporated by substantial number of small entities 4. The National Archives and Records reference is publicly available as listed under the criteria of the Regulatory Administration (NARA). in the ADDRESSES section. Flexibility Act. For information on the availability of The material incorporated by List of Subjects in 14 CFR Part 97 this material at NARA, email reference describes SIAPs, Takeoff [email protected] or go to: https:// Minimums and ODPs as identified in Air Traffic Control, Airports, www.archives.gov/federal-register/cfr/ the amendatory language for part 97 of Incorporation by reference, Navigation ibr-locations.html. this final rule. (Air).

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Issued in Washington, DC, on May 15, PART 97—STANDARD INSTRUMENT or TACAN; § 97.25 LOC, LOC/DME, 2020. APPROACH PROCEDURES LDA, LDA/DME, SDF, SDF/DME; Robert C. Carty, § 97.27 NDB, NDB/DME; § 97.29 ILS, Executive Deputy Director, Flight Standards ■ 1. The authority citation for part 97 ILS/DME, MLS, MLS/DME, MLS/RNAV; Service. continues to read as follows: § 97.31 RADAR SIAPs; § 97.33 RNAV Adoption of the Amendment Authority: 49 U.S.C. 106(f), 106(g), 40103, SIAPs; and § 97.35 COPTER SIAPs, 40106, 40113, 40114, 40120, 44502, 44514, Identified as follows: Accordingly, pursuant to the 44701, 44719, 44721–44722. authority delegated to me, Title 14, Effective Upon Publication Code of Federal regulations, Part 97, (14 §§ 97.23, 97.25, 97.27 NDB, 97.29, 97.31, CFR part 97), is amended by amending 97.33 and 97.35 [Amended] Standard Instrument Approach ■ 2. Part 97 is amended to read as Procedures and Takeoff Minimums and follows: ODPs, effective at 0901 UTC on the By amending: § 97.23 VOR, VOR/ dates specified, as follows: DME, VOR or TACAN, and VOR/DME

AIRAC date State City Airport FDC No. FDC date Subject

18–Jun–20 ...... PA Hazleton ...... Hazleton Rgnl ...... 0/3220 4/9/20 This NOTAM, published in Docket No. 31311, Amdt No. 3904, TL 20– 13, (85 FR 27919; May 12, 2020) is hereby re- scinded in its entirety. 18–Jun–20 ...... MO Boonville ...... Jesse Viertel Memorial .... 0/6151 5/1/20 RNAV (GPS) RWY 18, Orig–A. 18–Jun–20 ...... KS Coffeyville ...... Coffeyville Muni ...... 0/6398 5/1/20 VOR/DME–A, Amdt 7A. 18–Jun–20 ...... SC Allendale ...... Allendale County ...... 0/6900 4/29/20 RNAV (GPS) RWY 35, Orig–B. 18–Jun–20 ...... SC Allendale ...... Allendale County ...... 0/6901 4/29/20 RNAV (GPS) RWY 17, Orig–A. 18–Jun–20 ...... NM Las Vegas ...... Las Vegas Muni ...... 0/6986 5/4/20 VOR RWY 20, Amdt 6A. 18–Jun–20 ...... SD Sioux Falls ...... Joe Foss Field ...... 0/6987 5/1/20 ILS OR LOC RWY 3, Amdt 27F. 18–Jun–20 ...... SD Sioux Falls ...... Joe Foss Field ...... 0/6988 5/1/20 ILS OR LOC RWY 21, Amdt 10B. 18–Jun–20 ...... SD Sioux Falls ...... Joe Foss Field ...... 0/6989 5/1/20 RNAV (GPS) RWY 3, Amdt 1C. 18–Jun–20 ...... SD Sioux Falls ...... Joe Foss Field ...... 0/6990 5/1/20 RNAV (GPS) RWY 9, Orig-E. 18–Jun–20 ...... SD Sioux Falls ...... Joe Foss Field ...... 0/6991 5/1/20 RNAV (GPS) RWY 27, Orig-E. 18–Jun–20 ...... SD Sioux Falls ...... Joe Foss Field ...... 0/6992 5/1/20 VOR/DME OR TACAN RWY 33, Amdt 12E. 18–Jun–20 ...... SD Sioux Falls ...... Joe Foss Field ...... 0/6993 5/1/20 VOR OR TACAN RWY 15, Amdt 21E. 18–Jun–20 ...... MI Saginaw ...... Saginaw County H W 0/7069 5/1/20 VOR/DME–A, Amdt 4. Browne. 18–Jun–20 ...... AL Dothan ...... Dothan Rgnl ...... 0/7071 4/30/20 RNAV (GPS) RWY 14, Amdt 2B. 18–Jun–20 ...... AL Dothan ...... Dothan Rgnl ...... 0/7073 4/30/20 RNAV (GPS) RWY 32, Amdt 1B. 18–Jun–20 ...... AL Dothan ...... Dothan Rgnl ...... 0/7074 4/30/20 RNAV (GPS) RWY 18, Amdt 2A. 18–Jun–20 ...... AL Dothan ...... Dothan Rgnl ...... 0/7075 4/30/20 ILS OR LOC RWY 14, Amdt 1A. 18–Jun–20 ...... AL Dothan ...... Dothan Rgnl ...... 0/7076 4/30/20 ILS OR LOC RWY 32, Amdt 9A. 18–Jun–20 ...... AL Dothan ...... Dothan Rgnl ...... 0/7077 4/30/20 VOR OR TACAN–A, Amdt 13. 18–Jun–20 ...... AL Dothan ...... Dothan Rgnl ...... 0/7083 4/30/20 VOR RWY 18, Amdt 3C. 18–Jun–20 ...... AL Dothan ...... Dothan Rgnl ...... 0/7084 4/30/20 VOR RWY 14, Amdt 4B. 18–Jun–20 ...... TX Greenville ...... Majors ...... 0/7111 5/1/20 VOR/DME RWY 17, Amdt 1. 18–Jun–20 ...... AR Monticello ...... Monticello Muni/Ellis Field 0/8381 5/5/20 RNAV (GPS) RWY 3, Amdt 1C. 18–Jun–20 ...... AR Monticello ...... Monticello Muni/Ellis Field 0/8382 5/5/20 VOR–A, Amdt 6B. 18–Jun–20 ...... TN Shelbyville ...... Bomar Field-Shelbyville 0/8547 5/5/20 RNAV (GPS) RWY 18, Muni. Orig. 18–Jun–20 ...... TN Shelbyville ...... Bomar Field-Shelbyville 0/8548 5/5/20 RNAV (GPS) Y RWY 36, Muni. Orig–A. 18–Jun–20 ...... TN Shelbyville ...... Bomar Field-Shelbyville 0/8549 5/5/20 RNAV (GPS) Z RWY 36, Muni. Orig. 18–Jun–20 ...... TN Shelbyville ...... Bomar Field-Shelbyville 0/8550 5/5/20 VOR/DME RWY 18, Amdt Muni. 5.

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AIRAC date State City Airport FDC No. FDC date Subject

18–Jun–20 ...... TN Shelbyville ...... Bomar Field-Shelbyville 0/8552 5/5/20 VOR RWY 18, Amdt 5A. Muni. 18–Jun–20 ...... TN Dickson ...... Dickson Muni ...... 0/8702 5/5/20 RNAV (GPS) RWY 17, Amdt 1B. 18–Jun–20 ...... WV Berkeley Springs ...... Potomac Airpark ...... 0/8703 5/5/20 VOR RWY 29, Amdt 6A. 18–Jun–20 ...... MA Falmouth ...... Cape Cod Coast Guard 0/8941 5/5/20 ILS OR LOC RWY 32, Air Station. Amdt 1B. 18–Jun–20 ...... PA Hazleton ...... Hazleton Rgnl ...... 0/9132 5/7/20 RNAV (GPS) RWY 10, Amdt 3.

[FR Doc. 2020–11219 Filed 5–26–20; 8:45 am] Avenue SE, West Bldg., Ground Floor, The large number of SIAPs, Takeoff BILLING CODE 4910–13–P Washington, DC 20590–0001. Minimums and ODPs, their complex 2. The FAA Air Traffic Organization nature, and the need for a special format Service Area in which the affected make publication in the Federal DEPARTMENT OF TRANSPORTATION airport is located; Register expensive and impractical. 3. The office of Aeronautical Further, airmen do not use the Federal Aviation Administration Navigation Products, 6500 South regulatory text of the SIAPs, Takeoff MacArthur Blvd., Oklahoma City, OK Minimums or ODPs, but instead refer to 14 CFR Part 97 73169 or, their graphic depiction on charts [Docket No. 31312 Amdt. No. 3905] 4. The National Archives and Records printed by publishers of aeronautical Administration (NARA). For materials. Thus, the advantages of Standard Instrument Approach information on the availability of this incorporation by reference are realized Procedures, and Takeoff Minimums material at NARA, email fedreg.legal@ and publication of the complete and Obstacle Departure Procedures; nara.gov or go to: https:// description of each SIAP, Takeoff Miscellaneous Amendments www.archives.gov/federal-register/cfr/ Minimums and ODP listed on FAA form documents is unnecessary. This AGENCY: Federal Aviation ibr-locations.html. amendment provides the affected CFR Administration (FAA), DOT. Availability sections and specifies the types of ACTION: Final rule. All SIAPs and Takeoff Minimums and SIAPs, Takeoff Minimums and ODPs SUMMARY: This rule establishes, amends, ODPs are available online free of charge. with their applicable effective dates. suspends, or removes Standard Visit the National Flight Data Center at This amendment also identifies the Instrument Approach Procedures nfdc.faa.gov to register. Additionally, airport and its location, the procedure, (SIAPs) and associated Takeoff individual SIAP and Takeoff Minimums and the amendment number. Minimums and Obstacle Departure and ODP copies may be obtained from Availability and Summary of Material Procedures (ODPs) for operations at the FAA Air Traffic Organization Incorporated by Reference certain airports. These regulatory Service Area in which the affected The material incorporated by actions are needed because of the airport is located. reference is publicly available as listed adoption of new or revised criteria, or FOR FURTHER INFORMATION CONTACT: in the ADDRESSES section. because of changes occurring in the Thomas J. Nichols, Flight Procedures The material incorporated by National Airspace System, such as the and Airspace Group, Flight reference describes SIAPS, Takeoff commissioning of new navigational Technologies and Procedures Division, Minimums and/or ODPS as identified in facilities, adding new obstacles, or Flight Standards Service, Federal the amendatory language for part 97 of changing air traffic requirements. These Aviation Administration. Mailing this final rule. changes are designed to provide safe Address: FAA Mike Monroney and efficient use of the navigable Aeronautical Center, Flight Procedures The Rule airspace and to promote safe flight and Airspace Group, 6500 South This amendment to 14 CFR part 97 is operations under instrument flight rules MacArthur Blvd., Registry Bldg 29 effective upon publication of each at the affected airports. Room 104, Oklahoma City, OK 73169. separate SIAP, Takeoff Minimums and DATES: This rule is effective May 27, Telephone: (405) 954–4164. ODP as Amended in the transmittal. 2020. The compliance date for each SUPPLEMENTARY INFORMATION: This rule Some SIAP and Takeoff Minimums and SIAP, associated Takeoff Minimums, amends Title 14 of the Code of Federal textual ODP amendments may have and ODP is specified in the amendatory Regulations, Part 97 (14 CFR part 97), by been issued previously by the FAA in a provisions. establishing, amending, suspending, or Flight Data Center (FDC) Notice to The incorporation by reference of removes SIAPS, Takeoff Minimums Airmen (NOTAM) as an emergency certain publications listed in the and/or ODPS. The complete regulatory action of immediate flight safety relating regulations is approved by the Director description of each SIAP and its directly to published aeronautical of the Federal Register as of May 27, associated Takeoff Minimums or ODP charts. 2020. for an identified airport is listed on FAA The circumstances that created the ADDRESSES: Availability of matters form documents which are incorporated need for some SIAP and Takeoff incorporated by reference in the by reference in this amendment under 5 Minimums and ODP amendments may amendment is as follows: U.S.C. 552(a), 1 CFR part 51, and 14 require making them effective in less CFR part 97.20. The applicable FAA than 30 days. For the remaining SIAPs For Examination forms are FAA Forms 8260–3, 8260–4, and Takeoff Minimums and ODPs, an 1. U.S. Department of Transportation, 8260–5, 8260–15A, and 8260–15B when effective date at least 30 days after Docket Ops–M30, 1200 New Jersey required by an entry on 8260–15A. publication is provided.

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Further, the SIAPs and Takeoff Authority: 49 U.S.C. 106(f), 106(g), 40103, ‘‘SEARCH.’’ Click on Open Docket Minimums and ODPs contained in this 40106, 40113, 40114, 40120, 44502, 44514, Folder on the line associated with this amendment are based on the criteria 44701, 44719, 44721–44722. rule. contained in the U.S. Standard for ■ 2. Part 97 is amended to read as FOR FURTHER INFORMATION CONTACT: If Terminal Instrument Procedures follows: you have questions about this (TERPS). In developing these SIAPs and Effective 18 June 2020 rulemaking, call or email Lieutenant Takeoff Minimums and ODPs, the Commander Corinne Plummer, Sector TERPS criteria were applied to the Lansing, MI, Capital City, RADAR 1, Amdt 15, CANCELLED New Orleans, U.S. Coast Guard; conditions existing or anticipated at the telephone 504–365–2375, email affected airports. Because of the close Effective 16 July 2020 [email protected]. and immediate relationship between Chalkyitsik, AK, Chalkyitsik, RNAV (GPS) SUPPLEMENTARY INFORMATION: these SIAPs, Takeoff Minimums and RWY 4, Amdt 1 ODPs, and safety in air commerce, I find Chalkyitsik, AK, Chalkyitsik, RNAV (GPS) I. Table of Abbreviations that notice and public procedure under RWY 22, Amdt 1 ANPRM Advance noticed of proposed 5 U.S.C. 553(b) are impracticable and Chalkyitsik, AK, Chalkyitsik, Takeoff rulemaking contrary to the public interest and, Minimums and Obstacle DP, Amdt 2 Cape CFR Code of Federal Regulations Girardeau, MO, Cape Girardeau Rgnl, ILS where applicable, under 5 U.S.C 553(d), DHS Department of Homeland Security OR LOC RWY 10, Amdt 12B FR Federal Register good cause exists for making some Cape Girardeau, MO, Cape Girardeau Rgnl, SIAPs effective in less than 30 days. § Section LOC BC RWY 28, Amdt 8D U.S.C. United States Code The FAA has determined that this Cape Girardeau, MO, Cape Girardeau Rgnl, regulation only involves an established VOR RWY 2, Amdt 11A, CANCELLED II. Background Information and body of technical regulations for which Hardin, MT, Big Horn County, RNAV (GPS) Regulatory History frequent and routine amendments are RWY 26, Orig Hardin, MT, Big Horn County, Takeoff Coast Guard Sector New Orleans necessary to keep them operationally Minimums and Obstacle DP, Orig received a request from the Crescent current. It, therefore—(1) is not a Harlingen, TX, Valley Intl, ILS OR LOC River Pilots Association and the New ‘‘significant regulatory action’’ under RWY 17R, Orig-D Orleans Baton Rouge Rivers Pilots Executive Order 12866; (2) is not a [FR Doc. 2020–11218 Filed 5–26–20; 8:45 am] Association to establish new anchorages ‘‘significant rule’’ under DOT BILLING CODE 4910–13–P and to amend existing anchorages. In Regulatory Policies and Procedures (44 response, on April 3, 2015, the Coast FR 11034; February 26,1979); and (3) Guard published an advance notice of does not warrant preparation of a DEPARTMENT OF HOMELAND proposed rulemaking (ANPRM) titled regulatory evaluation as the anticipated SECURITY ‘‘Anchorage Grounds: Lower impact is so minimal. Mississippi River below Baton Rouge, For the same reason, the FAA certifies Coast Guard LA, including South and Southwest that this amendment will not have a Passes; New Orleans, LA’’ (80 FR significant economic impact on a 33 CFR Part 110 18175). There we stated why we issued substantial number of small entities the ANPRM, and invited comments on [Docket Number USCG–2014–0991] under the criteria of the Regulatory potential regulatory action related to Flexibility Act. RIN 1625–AA01 this anchorage grounds rule. During the comment period that ended June 2, List of Subjects in 14 CFR Part 97 Anchorage Grounds; Lower 2015, we received three comments on Air Traffic Control, Airports, Mississippi River Below Baton Rouge, the ANPRM. Incorporation by reference, Navigation LA, Including South and Southwest After reviewing the received (Air). Passes; New Orleans, LA comments on the ANPRM, the Coast Guard moved forward with establishing AGENCY: Coast Guard, DHS. Issued in Washington, DC, on May 15, the anchorages by publishing an interim ACTION: 2020. Final rule. rule on June 14, 2017 (82 FR 27112). Robert C. Carty, SUMMARY: The Coast Guard is adopting That interim rule solicited new Executive Deputy Director, Flight Standards a 2017 interim rule involving four comments as well as established the Service. anchorage grounds on the Lower anchorages on an interim basis to allow Adoption of the Amendment Mississippi River below Baton Rouge as for observance of functional suitability a final rule. The interim rule established over a period of time. During the Accordingly, pursuant to the two anchorage grounds and revised two comment period that ended October 12, authority delegated to me, Title 14, others which increased the available 2017, no new comments were received. Code of Federal Regulations, Part 97 (14 anchorage grounds necessary to This final rule is completing this CFR part 97) is amended by accommodate vessel traffic. After rulemaking by adopting the interim rule establishing, amending, suspending, or considering comments on that rule we as final. removing Standard Instrument have decided to adopt it as final without III. Legal Authority and Need for Rule Approach Procedures and/or Takeoff change which now completes this Minimums and Obstacle Departure rulemaking. The Coast Guard is issuing this rule Procedures effective at 0901 UTC on the under authority in 33 U.S.C. 471 that DATES: This rule is effective June 26, dates specified, as follows: has been delegated from the Secretary of 2020. Homeland Security to the Coast Guard. PART 97—STANDARD INSTRUMENT ADDRESSES: To view documents We have determined that the maritime APPROACH PROCEDURES mentioned in this preamble as being or commercial interests of the United available in the docket, go to https:// States require such anchorage grounds ■ 1. The authority citation for part 97 www.regulations.gov, type USCG–2014– for safe navigation in the Lower continues to read as follows: 0991 in the ‘‘SEARCH’’ box and click Mississippi River.

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IV. Discussion of Comments, Changes, are in the Federal Channel, a safe contact the person listed in the FOR and the Rule distance from shore, off revetment, in FURTHER INFORMATION CONTACT section. safe water, and do conflict with any As noted above, we received no E. Unfunded Mandates Reform Act comments on the interim rule published other permit or impede safe navigation. June 14, 2017. Therefore, the Coast Under section 213(a) of the Small The Unfunded Mandates Reform Act Business Regulatory Enforcement Guard intends to move forward and is of 1995 (2 U.S.C. 1531–1538) requires Fairness Act of 1996 (Pub. L. 104–121), adopting the interim rule as final Federal agencies to assess the effects of without any changes. we want to assist small entities in understanding this rule. If the rule their discretionary regulatory actions. In V. Regulatory Analyses would affect your small business, particular, the Act addresses actions organization, or governmental that may result in the expenditure by a We developed this rule after State, local, or tribal government, in the considering numerous statutes and jurisdiction and you have questions aggregate, or by the private sector of Executive orders related to rulemaking. concerning its provisions or options for $100,000,000 (adjusted for inflation) or Below we summarize our analyses compliance, please contact the person based on a number of these statutes and listed in the FOR FURTHER INFORMATION more in any one year. Though this rule Executive orders. CONTACT section. will not result in such an expenditure, Small businesses may send comments we do discuss the effects of this rule A. Regulatory Planning and Review on the actions of Federal employees elsewhere in this preamble. Executive Orders 12866 and 13563 who enforce, or otherwise determine F. Environment direct agencies to assess the costs and compliance with, Federal regulations to benefits of available regulatory the Small Business and Agriculture We have analyzed this rule under alternatives and, if regulation is Regulatory Enforcement Ombudsman Department of Homeland Security necessary, to select regulatory and the Regional Small Business Directive 023–01, Rev. 1, associated approaches that maximize net benefits. Regulatory Fairness Boards. The implementing instructions, and Executive Order 13771 directs agencies Ombudsman evaluates these actions Environmental Planning COMDTINST annually and rates each agency’s to control regulatory costs through a 5090.1 (series), which guide the Coast responsiveness to small business. If you budgeting process. This rule has not Guard in complying with the National been designated a ‘‘significant wish to comment on actions by Environmental Policy Act of 1969 (42 regulatory action,’’ under Executive employees of the Coast Guard, call 1– U.S.C. 4321–4370f), and have Order 12866. Accordingly, this rule has 888–REG–FAIR (1–888–734–3247). The not been reviewed by the Office of Coast Guard will not retaliate against determined that this action is one of a Management and Budget (OMB), and small entities that question or complain category of actions that do not pursuant to OMB guidance it is exempt about this rule or any policy or action individually or cumulatively have a from the requirements of Executive of the Coast Guard. significant effect on the human Order 13771. environment. This rule completes a This regulatory action determination C. Collection of Information rulemaking that involves the revision of is based on these anchorages being in This rule will not call for a new two anchorage grounds and the effect from June 14, 2017, through an collection of information under the establishment of two anchorage interim rule with no negative comments Paperwork Reduction Act of 1995 (44 grounds. It is categorically excluded received since. In addition, these U.S.C. 3501–3520). from further review under paragraph anchorages are on the side of the river D. Federalism and Indian Tribal L59(a) of Appendix A, Table 1 of DHS and easily navigated around by all Governments Instruction Manual 023–01–001–01, marine traffic. Rev. 01. A Record of Environmental A rule has implications for federalism B. Impact on Small Entities Consideration supporting this under Executive Order 13132, determination is available in the docket The Regulatory Flexibility Act of Federalism, if it has a substantial direct where indicated under ADDRESSES. 1980, 5 U.S.C. 601–612, as amended, effect on the States, on the relationship requires Federal agencies to consider between the national government and List of Subjects in 33 CFR Part 110 the potential impact of regulations on the States, or on the distribution of small entities during rulemaking. The power and responsibilities among the Anchorage grounds. term ‘‘small entities’’ comprises small various levels of government. We have businesses, not-for-profit organizations analyzed this rule under that Order and PART 110—ANCHORAGE that are independently owned and have determined that it is consistent REGULATIONS operated and are not dominant in their with the fundamental federalism fields, and governmental jurisdictions principles and preemption requirements ■ For the reasons discussed in the with populations of less than 50,000. described in Executive Order 13132. preamble, under authority of 33 U.S.C. The Coast Guard received 0 comments Also, this rule does not have tribal 471; 33 CFR 1.05–1; and Department of from the Small Business Administration implications under Executive Order Homeland Security Delegation No. on this rulemaking. The Coast Guard 13175, Consultation and Coordination 0170.1, the interim rule amending 33 certifies under 5 U.S.C. 605(b) that this with Indian Tribal Governments, CFR part 110 that was published at 82 rule will not have a significant because it does not have a substantial FR 27112 on June 14, 2017, is adopted economic impact on a substantial direct effect on one or more Indian as a final rule without change. tribes, on the relationship between the number of small entities. Dated: April 27, 2020. This rule does not have a significant Federal Government and Indian tribes, impact on a substantial number of small or on the distribution of power and J.P. Nadeau, entities. The rule adopts a previously responsibilities between the Federal Rear Admiral, U.S. Coast Guard, Commander, implemented interim rule amending Government and Indian tribes. If you Eighth Coast Guard District. two existing anchorages and creating believe this rule has implications for [FR Doc. 2020–09401 Filed 5–26–20; 8:45 am] two new anchorages. These anchorages federalism or Indian tribes, please BILLING CODE 9110–04–P

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DEPARTMENT OF HOMELAND A. Regulatory Planning and Review uninspected vessels to becoming SECURITY B. Small Entities inspected vessels.4 While this rule is not C. Assistance for Small Entities limited to towing vessels, it will allow Coast Guard D. Collection of Information a PIC currently using the LOD option on E. Federalism one of those uninspected towing vessels 33 CFR Part 155 F. Unfunded Mandates G. Taking of Private Property to continue to use that option to perform [Docket No. USCG–2018–0493] H. Civil Justice Reform the same fuel oil transfers once the I. Protection of Children vessel becomes an inspected vessel. RIN 1625–AC50 J. Indian Tribal Governments This transition happens when the vessel K. Energy Effects is issued a certificate of inspection Person in Charge of Fuel Transfers L. Technical Standards (COI). M. Environment AGENCY: Coast Guard, DHS. This rule only addresses transfers of fuel oil. The PIC requirements in 33 CFR ACTION: Final rule. I. Abbreviations 155.710(a), (b) and (f) for vessels SUMMARY: The Coast Guard is amending CFR Code of Federal Regulations transferring cargo remain unchanged. the requirements regulating personnel COI Certificate of Inspection Executive Orders 12866 (Regulatory DHS Department of Homeland Security permitted to serve as a person in charge Planning and Review) and 13777 FR Federal Register (Enforcing the Regulatory Reform (PIC) of fuel oil transfers on an LOD Letter of designation inspected vessel by adding the option of Agenda) direct us to eliminate MERPAC Merchant Marine Personnel 5 using a letter of designation (LOD) in Advisory Committee unnecessary regulatory burdens. We lieu of a Merchant Mariner Credential MISLE Marine Information for Safety and believe that the LOD option provides a (MMC) with a Tankerman-PIC Law Enforcement level of safety and protection for fuel oil endorsement. Obtaining an MMC with a MMC Merchant Mariner Credential transfers equivalent to the Tankerman- Tankerman-PIC endorsement is now MPH Miles per hour PIC option, while eliminating the optional for PICs of fuel oil transfers on NMC National Maritime Center burden of obtaining and maintaining a NPRM Notice of proposed rulemaking Merchant Mariner Credential (MMC). By inspected vessels. This change is not OMB Office of Management and Budget limited to towing vessels, but one effect adding this LOD alternative, individuals PIC Person in charge on inspected vessels now have an of this rule is that a PIC currently using § Section the LOD option on an uninspected STCW International Convention of option that was previously only towing vessel may continue to do so Standards of Training Certification and available to individuals on uninspected Watchkeeping for Seafarers vessels. once the vessel receives its Certificate of 6 Inspection. TSAC Towing Safety Advisory Committee As discussed in the NPRM, the Coast TWIC Transportation Worker Identification Guard tasked the Merchant Marine DATES: This final rule is effective May Card Personnel Advisory Committee 27, 2020. CG–MMC Policy Letter 01–17 U.S.C. United States Code (MERPAC) and the Towing Safety is cancelled effective May 27, 2020. VSO Vessel Security Officer Advisory Committee (TSAC) to review ADDRESSES: To view comments on the existing PIC requirements for vessel fuel notice of proposed rulemaking and II. Basis and Purpose, and Regulatory History transfers and to make recommendations documents mentioned in this preamble for amendments. The Coast Guard as being available in the docket, go to As we stated in the notice of proposed reviewed the recommendations from http://www.regulations.gov, type USCG– rulemaking (NPRM) published on both TSAC and MERPAC and agreed 2018–0493 in the ‘‘SEARCH’’ box and August 14, 2019 (84 FR 40329), the with MERPAC’s broader click ‘‘SEARCH.’’ Click on Open Docket Coast Guard established the option of recommendation that all inspected Folder on the line associated with this using a letter of designation (LOD) for vessels should have the option of using rule. uninspected vessels in 1998.1 The LOD an LOD to satisfy the requirement for FOR FURTHER INFORMATION CONTACT: For designates the holder as a person in designating the PIC of fuel transfers. information about this document call or charge (PIC) of the transfer of fuel oil This final rule is consistent with email Cathleen Mauro, Office of and states that the holder has received MERPAC’s recommendation and Merchant Mariner Credentialing (CG– sufficient formal instruction from the provides the relief sought for towing MMC–1), Coast Guard; telephone 202– operator or agent of the vessel to ensure vessels in the TSAC recommendation. 372–1449, email Cathleen.B.Mauro@ his or her ability to safely and In March 2017, the Coast Guard uscg.mil. adequately carry out the duties and issued CG–MMC Policy Letter No. 01– responsibilities of the PIC.2 When 17 titled, ‘‘Guidelines for Issuing SUPPLEMENTARY INFORMATION: establishing the LOD option, we stated Endorsements for Tankerman-PIC Table of Contents for Preamble that the formal instruction required by Restricted to Fuel Transfers on Towing this option should ensure that personnel Vessels.’’ 7 As we stated in the NPRM,8 I. Abbreviations II. Basis and Purpose, and Regulatory History acting as PICs of fuel oil transfers have this policy eased some of the III. Discussion of Comments the ability to safely and adequately carry requirements for obtaining an MMC A. Decades-Long Use of LODs which focus out their duties and responsibilities on fuel oil transfers while minimizing the risks of pollution 4 See 46 CFR 136.202, and discussion in this B. Safety and environmental concerns and from fuel oil spills.3 document’s Regulatory Analysis regarding the restricted-endorsement policy letter number of towing vessels making this transition. Thousands of towing vessels are 5 C. Miscellaneous See Section 1(b)(11) and Section 1, respectively. currently transitioning from being 6 D. No changes to regulatory text 84 FR 40329, 40332, August 14, 2019. 7 IV. Discussion of the Rule U.S. Coast Guard, Guidelines for Issuing 1 See Qualifications for Tankerman and for Endorsements for Tankermen PIC Restricted to Fuel A. Amendments to § 155.710(e) Persons in Charge of Transfers of Dangerous Liquids Transfers on Towing Vessels (Mar. 10, 2017), B. Amendments to § 155.715 and Liquefied Gases final rule (63 FR 35822, July https://www.dco.uscg.mil/Portals/9/NMC/pdfs/ C. This rule only addresses fuel oil 1, 1998). announcements/2017/cg-mmc_policy_letter_01-17_ transfers, not LNG fuel transfers 2 33 CFR 155.715. final_3_9_17-date.pdf. V. Regulatory Analyses 3 63 FR 35822, 35825, July 1, 1998. 8 84 FR 40329, 40332, August 14, 2019.

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with a Tankerman PIC endorsement, but A. Decades-Long Use of LODs Which the LOD holder will be authorized to it did not completely relieve the burden Focus on Fuel Oil Transfers serve on as a PIC. The requirements in of obtaining the credential or 1. LODs have been used safely for § 155.715 specify that formal instruction maintaining the endorsement through more than 2 decades: One commenter is provided by the operator or agent of the renewal process every 5 years and stated that the LOD option has been the vessel or vessels identified in the it only addresses inspected towing safely used on uninspected vessels for LOD. vessels—not other inspected vessels. more than 2 decades and is a highly B. Safety and Environmental Concerns Authority under Subtitle II and regulated process that ensures mariners and Restricted-Endorsement Policy Chapter 700 of Title 46 United States serving as a PIC of fuel oil transfers are Letter properly trained. The commenter noted Code, specifically 46 U.S.C. 3306 and 1. Some warn that restricted that when vessel operators issue an 70034, has been delegated to the Coast endorsement may increase risk level LOD, they certify that the holder has Guard and allows us to establish and while some want endorsement received sufficient formal training and amend regulations for a person in continued: One commenter noted the instruction to safely and adequately charge (PIC) of fuel oil transfers. This cost burden 9 to unlicensed deckhands carry out the duties and responsibilities rule is authorized by Subtitle II of obtaining an endorsement for a of transferring fuel oil as required by provisions to regulate lightering (46 Tankerman-PIC Restricted to Fuel regulation. The commenter pointed out U.S.C. 3715) and personnel Transfers on Towing Vessels created by that ‘‘33 CFR 156.120 details 28 qualifications for all inspected vessels, Policy Letter 01–17, but warned that individual elements in the fuel transfer including nontank vessels (46 U.S.C. this restricted endorsement may process that a PIC must understand and 3703), and by 46 U.S.C. chapter 700 increase risk levels. This commenter conduct, and that 33 CFR 156.150 wrote that Policy Letter 01–17 waives provisions regarding waterfront safety, requires documentation of each fuel training requirements (for approved including protection of navigable waters transfer, including a signed declaration firefighting and tankship course), while and the resources therein (46 U.S.C. from the PIC certifying that each of allowing uncredentialed deckhands 70011). those requirements was completed.’’ with LODs 10 to become credentialed We are making this rule effective They assessed the LOD option as mariners who may demand higher pay upon publication because it relieves a providing an equivalent level of safety rates. The commenter observed that restriction and 5 U.S.C. 553(d)(1) does and environmental stewardship when once a person uses a vessel-specific not require us to wait 30 days before we compared to MMCs with a Restricted LOD to qualify for an MMC with an make such rules effective. This rule Tankerman-PIC endorsement. Response: We concur that LOD endorsement for Tankerman-PIC relieves a restriction by allowing an Restricted to Fuel Transfers on Towing LOD to be used to designate a PIC on an requirements are detailed, and that the operator or agent of the vessel must Vessels, as allowed by Policy Letter 01– inspected vessel. Also, we find good 17, they are free to work as a PIC on cause under 5 U.S.C. 553(d)(3) for certify that the holder has received sufficient formal instruction to safely other towing vessels even if that vessel making this rule effective upon is quite different from the vessel for publication because it would be and adequately carry out these detailed requirements. While this formal which they held an LOD. contrary to the public interest not to do Another commenter requested that we instruction is received from the operator so. Currently, under provisions in 46 retain the option for mariners to obtain or agent of the vessel(s) identified in the CFR 136.202, thousands of uninspected and renew endorsements as Tankerman- LOD, the detailed requirements in 33 towing vessels are becoming inspected PIC Restricted to Fuel Transfers on CFR 156.120 and 156.150 are towing vessels. Making this rule Towing Vessels. They viewed this standardized for any PIC engaged in fuel effective May 27, 2020 will enable more option as providing equivalent levels of oil transfers. persons with an LOD currently serving 2. LODs allow for vessel-specific safety and environmental stewardship as a PIC on an uninspected towing training focused on fuel oil transfers: as the LOD option and stated that vessel to continue to do so without One commenter noted that the LOD keeping the restricted endorsement obtaining an MMC endorsement once option creates important regulatory option would allow maximum that same vessel becomes an inspected relief, allows for increased flexibility, flexibility for mariners and their vessel. and broadens the scope of available employers. They also noted that mariners who have obtained an MMC III. Discussion of Comments mariners to serve as a PIC for fuel oil transfers on inspected vessels. The with the restricted Tankerman-PIC The Coast Guard received 10 written commenter stated that it allows for a endorsement may wish to maintain that credential for professional development submissions during the 62-day comment focus on vessel-specific training regarding fuel oil transfers, which can reasons. period that ended October 15, 2019. Response: With respect to concerns vary widely across the diverse A common theme for those who about Policy Letter 01–17, this rule supported the proposed rule, was that nationwide marine fleet, and views this specialization in training as a positive the vessel-specific training for an LOD 9 The evaluation ($95) and issuance ($45) fees are addition, going above and beyond the is more practicable and appropriate for described in 46 CFR 10.219, in the Table 1 to requirements of a more general fuel oil transfers compared to the § 10.219(a) row for MMC with rating endorsement: endorsement. Another commenter noted Original endorsement for qualified rating. broader, cargo-transfer focused training 10 that a feature of the LOD is that it keeps The commenter is correct that the policy letter for a Tankerman-PIC endorsement. does not require applicants to have previously held scrutiny of training and oversight at the mariner credentials. Applicants must be at least 18 Those who opposed the proposed rule vessel level and that the commenter’s generally viewed it as a change that years old and hold a valid Transportation Worker company issues vessel specific LODs. Identification Card (TWIC) or have enrolled for one. would lower safety and environmental Response: The Coast Guard concurs An alternative to holding an LOD, would be to standards. that the LOD option tends to focus ‘‘provide evidence of participation, under the supervision of someone designated as PIC of a fuel The Coast Guard summarizes and training on fuel oil transfers for a transfer, in at least five fuel transfers on Towing addresses the comments below. specific vessel or a fleet of vessels that Vessels during the preceding 5 years.’’

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provides more complete relief from the requirements and indicated they transfers is not required for an LOD, existing § 155.710(e) requirement than disadvantaged U.S. mariners compared formal instruction is required. The Policy Letter 01–17 does, and it does so to foreign mariners. The commenter holder of an LOD is required to receive without waiving any training referenced the Deepwater Horizon sufficient formal instruction from the requirements for obtaining an MMC PIC accident as an example of why cutting operator or agent of the vessel to ensure endorsement. With this rule’s addition costs to industry by lowering standards his or her ability to safely and of an LOD option, there are now two that provided safety to mariners and adequately carry out the duties and avenues to qualify as a PIC for the protection for the environment is responsibilities of the PIC described in transfer of fuel oil: (1) Hold a valid dangerous. 33 CFR 156.120 (requirements for MMC with either an officer or Response: The requirements for an transfer) and 156.150 (Declaration of Tankerman-PIC endorsement; or (2) use MMC endorsement and a LOD have inspection). the new option for inspected vessels of remained unchanged for many years, so The recommendation for a PIC- designating a PIC with an LOD as the requisite training has not changed. Fueling endorsement for those who described in 33 CFR 155.715. Therefore, We see no correlation, therefore, bunker and transfer aboard smaller, we are cancelling Policy Letter 01–17 between the commenters’ reference to previously uninspected vessels warrants effective May 27, 2020. The Coast Guard either an increase in accidents in recent future consideration, but that supports mariners pursuing professional years or a reduced level of safety, and recommendation is beyond the scope of development but, for the reason stated the requirements regulating personnel this rulemaking. permitted to serve as a PIC of fuel oil above, we are cancelling Policy Letter C. Miscellaneous 01–17 upon publication of this rule. transfers on an inspected vessel. To the 2. Perceived decline in both safety extent the commenter may be concerned 1. Make changes proposed by NPRM and protection of the environment: One about the endorsement for a Tankerman- effective faster by issuing a policy letter: commenter opposed the proposed rule PIC Restricted to Fuel Transfers on One commenter, who referenced a and stated that he sees too many Towing Vessels introduced in 2017, method for training new deckhands so accidents and spills from untrained effective May 27, 2020 we are cancelling they can qualify for their vessel-specific crews that go unreported. The the CG–MMC Policy Letter 01–17 LOD, recommended that we implement commenter stated that as a crew enabling that restricted endorsement. the LOD option via a policy letter member he has seen a serious decline in Personnel designated as PICs through pending the effective date of this rule. Response: We appreciate the concern safety and an increase in small the use of an LOD are required to and another commenter’s concern about accidents in the last few years, receive formal instruction from the making the LOD option available as including 14-hour-work days in operator or agent of the vessel, sufficient soon as possible, and we are making this violation of STCW 11 watch hours. The to ensure his or her ability to safely and rule effective upon publication. After commenter said that companies offer adequately carry out the duties and 13 we publish a rule, normally there is a low wages and are not willing to pay a responsibilities of the PIC. These 30-day waiting period before we can meaningful wage to trained and duties include understanding discharge (spill) reporting procedures.14 Any make it effective, but under 5 U.S.C. competent workers. The commenter did 553(d)(1) this waiting period does not not directly attribute the reduced level individual who witnesses a spill or other reportable marine casualty should apply to rules that relieve a restriction. of safety to LODs. Starting May 27, 2020, this rule will Another commenter wrote that easing report that casualty to the Coast Guard. begin relieving a restriction by allowing PIC requirements was ‘‘caving to Enforcement of casualty reporting and an LOD to be used to designate a PIC on pressure from industry’’ and unfair to applicable STCW requirements will an inspected vessel. those who have already completed continue independent of this regulatory initiative. The influence of market 2. Let Tankerman-Engineer approved training to obtain a endorsement serve to satisfy Tankerman-PIC endorsement. The forces on how much is paid to those with a Tankerman-PIC endorsement or § 155.710(e) requirements: One commenter stated there is no substitute commenter noted that the commenter’s for loading-and-discharging training that have received sufficient formal instruction to obtain an LOD is beyond employer requires all officers, even service requirements and recommended engineers with no involvement in cargo a PIC-Fueling endorsement for those the scope of this rulemaking. As for the second commenter, this transfers (on a tankship), to maintain a who bunker and transfer aboard smaller, rule, which is supported by Tankerman-PIC endorsement. Even previously uninspected vessels. recommendations of the MERPAC and though 33 CFR 155.710(e) permits Additionally, the commenter stated that the TSAC, does not change the engineering officers to serve as PICs, the there has been a rise in accidents in the requirements for having a designated commenter suggests that we specifically inland industry in the last few years. In PIC as described in 33 CFR 155.700, the add the Tankerman-Engineer suggesting a caving-to-industry trend, process for obtaining a Tankerman-PIC endorsement as an option in addition to the commenter referenced recently 12 endorsement in 46 CFR part 13, subpart the Tankerman-PIC endorsement to issued gap-closure training B, or the requirements for an LOD in 33 satisfy the requirement in § 155.710(e). CFR 155.715. To qualify for a Observing that not all vessels subject to 11 STCW stands for the International Convention of Standards of Training Certification and Tankerman-PIC endorsement, PIC requirements are oil tankers— Watchkeeping for Seafarers. applicants must present evidence of making it difficult or impossible to 12 Gap-closing training refers to requirements in supervised participation in at least five satisfy tankship or self-propelled-tank- 46 CFR 11.305 to 11.321 and 11.325 to 11.335, cargo loadings and five cargo vessel-loading-and-discharging service included in a 2013 final rule entitled discharges. While experience with cargo ‘‘Implementation of the Amendments to the requirements to obtain a Tankerman-PIC International Convention on Standards of Training, endorsement—the commenter wants the Certification and Watchkeeping for Seafarers, 1978 2010 amendments to the STCW Convention. Coast Guard to ensure that the [STCW Convention], and Changes to National Mariners had to complete this training before classroom requirements for the Endorsements’’ (78 FR 77795, 77805, December 24, January 1, 2017, to maintain the validity of their 2013). These training requirements were STCW endorsements. Tankerman-Engineer endorsement focus implemented to ensure mariners with existing 13 33 CFR 155.715. on fuel and bunker transfers. Finally, STCW endorsements met the requirements of the 14 33 CFR 156.120(w)(10). the commenter stated that if a PIC on a

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ship is required to have a Tankerman D. No Changes to Regulatory Text holder as a PIC of the transfer of fuel oil endorsement (PIC or Engineer) to We did not make any changes from and to state that the holder has received maintain responsibility for the transfer, the proposed rule based on the sufficient formal instruction from the the person working aboard the comments we received on the NPRM. operator or agent of the vessel to ensure transferring barge should also be The regulatory text of the final rule is his or her ability to safely and endorsed and educated to the same level the same as what we proposed in the adequately carry out the duties and of care. NPRM. responsibilities of the PIC described in 33 CFR 156.120 and 156.150. Changing Response: The suggestion to modify IV. Discussion of the Rule the training requirements for the our reference to it as ‘‘the letter Tankerman-Engineer endorsement to This final rule amends 33 CFR referenced in § 155.710(e)(1)’’ does not focus on fuel and bunker transfers—and 155.710(e), which sets forth the change any of those requirements, but it to add the Tankerman-Engineer as a provisions for the qualifications of the does make it clear that ‘‘letter of means to satisfy § 155.710(e)—warrants PIC of any fuel oil transfer requiring a designation’’ is the correct way to refer future consideration but is beyond the Declaration of Inspection. This rule does to the letter referenced in § 155.710(e) that must satisfy the requirements of scope of this rulemaking. The LOD not change the existing requirements for § 155.715. option that this rule makes available, the PIC on uninspected vessels, and the requirements for vessels transferring however, enables those who are not able C. This Rule Only Addresses Fuel Oil cargo also remains unchanged. This rule to satisfy Tankerman-PIC endorsement Transfers, Not LNG Fuel Transfers provides inspected vessels two options service requirements to obtain formal for meeting requirements to serve as the This rule does not apply to liquefied instructions on fuel oil transfers so they PIC of a fuel oil transfer. Vessel natural gas (LNG) fuel transfers. Both may serve as a PIC on the vessel(s) operators may comply with the current §§ 155.710(e) and 155.715 apply solely identified in the LOD. inspected vessel requirement of having to the transfer of ‘‘fuel oil.’’ Fuel oil Regarding transfers from bunker a PIC with a valid MMC with either an means any oil used to fuel the barges, they are considered cargo officer or Tankerman-PIC endorsement propulsion and auxiliary machinery of transfers and the PIC on a tank barge or use the new option for inspected the ship carrying the fuel.16 required to be inspected under 46 U.S.C. vessels of designating a PIC with an V. Regulatory Analyses 3703, would need to meet requirements LOD as described in 33 CFR 155.715. in 33 CFR 155.710(b). Those We developed this rule after A. Amendments to § 155.710(e) requirements include the option of considering numerous statutes and having a Tankerman-PIC (Barge) This rule revises the text of 33 CFR Executive orders related to rulemaking. endorsement in order to serve as the PIC 155.710(e)(1) so that requirements for The regulatory text of this rule is of a cargo transfer. The requirements for inspected and uninspected vessels are unchanged, and the analysis for it is not a Tankerman-PIC (Barge) endorsement combined in that paragraph. Paragraph substantively changed from what we include experience on tank vessels. (e)(1)(i) presents the MMC endorsement proposed in the NPRM. We updated options and paragraph (e)(1)(ii) presents 3. Request to extend use of LODs to three figures used in the analysis to the LOD option. This rule also drilling fluids and other offshore- reflect changes realized after we redesignates the remaining paragraphs published the NPRM. We update the supply-vessel cargos: Two commenters in that section and amends a reference requested that the Coast Guard extend number of towing vessel inspections in the redesignated paragraph regarding completed to reflect inspections the use of the LOD for fuel transfers to tank barges to reflect our removal of transfers of drilling fluids and other conducted from July through October paragraph (e)(2). 2019. We updated the total population cargos for Offshore Supply Vessels With respect to MMCs, this rule (OSVs). They stated that offshore oil and of towing vessels to reflect knowledge removes obsolete terminology such as gained from recent inspections. We also gas industry is serviced by a fleet of merchant mariner ‘‘licenses’’ and OSVs that not only routinely load and revised the assumed turnover rate of 30 ‘‘Merchant Mariner Documents.’’ The percent following additional analysis of offload excess fuel, but also supply Coast Guard ceased issuing those types drilling fluids. They viewed the cargo data we obtained from the National of documents in 2009 when we Maritime Center. systems of OSVs as no more transitioned to the streamlined MMC. complicated or dangerous than its fuel Also, the rule clarifies the first sentence A. Regulatory Planning and Review oil systems and stated that harmful of § 155.710(e) by changing ‘‘shall Executive Orders 12866 (Regulatory nature of drilling fluids did not measure verify’’ to ‘‘must verify.’’ Planning and Review) and 13563 up to the harmful nature of fuel oil. B. Amendments to § 155.715 (Improving Regulation and Regulatory Response: Extending the use of an Review) direct agencies to assess the LOD to non-fuel-oil transfers is beyond In § 155.715, this rule changes the costs and benefits of available regulatory the scope of this rulemaking. The NPRM reference to § 155.710(e)(2) so that it alternatives and, if regulation is was clear regarding the scope of this refers to § 155.710(e)(1) instead. This necessary, to select regulatory rulemaking. We are amending 33 CFR change reflects our amendments to approaches that maximize net benefits 155.710(e), which only applies to fuel § 155.710(e). Also, to remove a long- (including potential economic, oil transfers. Drilling fluids are standing conflict of referring to the same environmental, public health and safety categorized as cargo, and therefore, letter as both ‘‘letter of instruction’’ and effects, distributive impacts, and would not qualify as a fuel oil transfer. ‘‘letter of designation,’’ this rule amends equity). Executive Order 13563 Moreover, drilling fluids 15 may contain the reference to a letter of instruction by emphasizes the importance of oil and under 46 CFR 125.110(e) we simply referring to it as ‘‘the letter quantifying both costs and benefits, of treat such fluids the same as oil cargo. referenced in § 155.710(e)(1).’’ reducing costs, of harmonizing rules, This letter has become known by the 15 As defined in 40 CFR 435.11(l), drilling fluid title we gave it in the § 155.715 heading, 16 As provided in § 155.110, this 33 CFR 151.05 is the circulating fluid used in the rotary drilling ‘‘letter of designation.’’ Section 155.715 definition of ‘‘fuel oil’’ applies to §§ 155.710 and of wells. requires the letter to designate the 155.715.

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and of promoting flexibility. Executive Executive Order 13771, titled ‘Reducing the methodology of the preliminary Order 13771 (Reducing Regulation and Regulation and Controlling Regulatory analysis for the proposed rule as final. Controlling Regulatory Costs) directs Costs’’’ (April 5, 2017). Details on the This final rule is necessary to provide agencies to reduce regulation and estimated cost savings of this rule can a less burdensome method of control regulatory costs and provides be found in the rule’s regulatory designating who may serve as the PIC of that ‘‘for every one new regulation analysis (RA) that follows. a fuel oil transfer on an inspected vessel issued, at least two prior regulations be by extending the LOD option to We received no public comments on identified for elimination, and that the inspected vessels. The individuals cost of planned regulations be prudently the estimated unit costs of the proposed expected to take advantage of this managed and controlled through a rule, so we retained these estimates for deregulatory action are the same budgeting process.’’ this analysis; however, because our individuals currently qualified as a PIC The Office of Management and Budget estimated population changed due to a with an LOD on an uninspected towing (OMB) has not designated this rule a revised turnover rate, the total estimated vessel once the vessel receives its significant regulatory action under cost savings changed from the NPRM. Certificate of Inspection. We estimate section 3(f) of Executive Order 12866. We received additional data to update the total cost savings of the final rule Accordingly, OMB has not reviewed it. estimates in our assessment of the over a 10-year period of analysis to be DHS considers this rule to be an proposed rule. Updating estimates with about $266,767,725, discounted at 7 Executive Order 13771 deregulatory new data does not alter the methodology percent. We estimate the annualized action. See the OMB Memorandum demonstrated in the preliminary cost savings to be about $37,981,722, titled ‘‘Guidance Implementing regulatory analysis; therefore, we adopt discounted at 7 percent.

TABLE 1—SUMMARY OF IMPACTS OF THE FINAL RULE

Category Summary

Applicability ...... Extend the LOD option described in 33 CFR 155.710(e)(2) to inspected vessels for fuel oil transfers. This will allow PIC designation to be fulfilled by an LOD rather than an MMC with an officer or Tankerman-PIC endorsement. Affected Population ...... The 11,540 individuals on 5,770 vessels that transfer fuel oil and that have a capacity to carry at least 250 barrels or that receive fuel oil from a vessel with a capacity to carry at least 250 barrels. Cost Savings (2018 $ Discounted at 7%) ...... 10-year period of analysis: $266,767,725. Annualized: $37,981,722. Cost Savings (2016 $ Discounted at 7% and Perpetual period of analysis: $26,323,316. discounted back to 2016).

Affected Population gathered during ongoing inspections, hour period.19 From the population of (1) Vessel Population. TVNCOE revised the total population of 5,770 vessels, each carrying two PICs, Section 155.700 of 33 CFR requires inspected towing vessels expected to we obtain an affected population of each operator or agent of a vessel with qualify under subchapter M by the end individuals equal to 11,540. The a capacity of 250 barrels or more that of the inspection period, adding 30 population of 5,770 becomes constant in engages in the transfer of fuel oil on the vessels and increasing the expected total Year 3 of the analysis period or in 2022 navigable waters or contiguous zone of from 5,740 to 5,770 vessels.18 and thereafter, once all affected vessels the United States to designate the PIC of are inspected. each transfer of fuel oil to or from the TABLE 2—PROJECTION OF SUB- In the proposed rule, we assumed an vessel. The affected population for this CHAPTER M VESSELS OBTAINING A individual turnover rate of 30 percent COI from an approved collection of deregulatory action is a subset of all 20 inspected vessels subject to the PIC information. In the interim, we were able to obtain more recent data that requirements in 33 CFR 155.710(e)(1). Year New Total subchapter M The recent change from uninspected to COIs inspected vessels indicates a current turnover rate of 32.55 percent. For this analysis, we used inspected status makes subchapter M 2018 ...... 253 253 vessels uniquely impacted by the MMC data from the National Maritime Center 2019 ...... 1,177 1,430 (NMC) for individuals obtaining MMCs requirement. The Coast Guard is not 2020 ...... 2,031 3,461 aware of other inspected vessel 2021 ...... 1,236 4,697 with issue dates from April 2009 to 2022 ...... 1,073 5,770 March 2020 and expiration dates from populations that would likely make use 21 of this rule. August 2009 to March 2025 to update The total population is subject to (2) Individual Population. 19 Information collection request (ICR), ‘‘Waste change while inspections are ongoing. We assume each vessel from the Management Plans, Refuse Discharge Logs, and In the time since the analysis described affected population to have at least two Letters of Instruction for Certain Persons-in-Charge in the NPRM, another 194 COIs were individuals able to serve as a PIC to (PIC) and Great Lakes Dry Cargo Residue issued to towing vessels.17 Table 2 ensure that at least one of them is Recordkeeping’’ OMB control number 1625–0072. shows the effect of the increased available for duty at any point in a 24- 20 See page 84 FR 40335 of NPRM and page 4 of supporting statement for ICR 1625–0072. number of COIs. Through information 21 As per 46 CFR 10.205. An MMC is valid for a 18 The Towing Vessel National Center of period of 5 years. The issue date of a renewal can 17 Monthly numbers of inspections completed Expertise (TVNCOE) estimated the increase of 30 be postdated by up to 8 months from the time of from July 2018 through October 2019 provided on vessels after discovering and correcting pervasive application to allow for maximum time on the October 21, 2019 by the National Towing Vessel errors in which vessels are classified as Subchapter renewed MMC. A future issue date (for example, Coordinator of the Office of Commercial Vessel M vessels in the Marine Information for Safety and March 2020) indicates that a mariner renewed an Compliance. Law Enforcement (MISLE) database. Continued

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the turnover rate. In the data from NMC, date after July 18, 2019 (when the data example, an MMC issued in April 2009 every MMC issued and every mariner was downloaded) as ineligible to renew. would be eligible for renewal in March has a unique identifying number such Otherwise, we assumed an MMC is 2014. If there is no new MMC issued by that sorting by mariner reference renewed if the issue date is within 2,190 March 2015, we assume that the mariner number shows all the MMCs for that days of the previous MMC’s issue left the marine industry or otherwise no mariner. date.22 The period of 2,190 days is longer requires an MMC (turned over) in × After cleaning the data for duplicates equivalent to 6 years (6 years 365 days 2015. We then tabulate how many and printing errors (where the NMC in a standard calendar year), which MMCs in each calendar year were issued a second credential with a new represents the validity period of 5 years eligible to renew, how many of those ID number within the same validity plus a year-long grace period wherein a eligible were renewed, and how many of period), we applied a formula that mariner cannot use the expiring MMC those eligible were not renewed to marks each MMC as either renewed, not but could renew that MMC without produce a turnover percentage as shown renewed, or ineligible to renew. We having to retake the required formal marked any MMC with an expiration training from the beginning. For below in Table 3.

TABLE 3—ESTIMATION OF TURNOVER RATE

MMCs MMCs Year eligible MMCs not Rate of to renew renewed renewed turnover

A B C = ((C/A) × 100)

2016 ...... 1,111 754 357 32.13% 2017 ...... 1,069 721 348 32.55% 2018 ...... 998 669 329 32.97%

Average ...... 32.55%

We use a three-year average of calculations using the turnover rate use compounded for each year after the first turnover rates from the last three full the unrounded figure for accuracy, any year of having the MMC in the 5 years calendar years to mirror the replications using a rounded turnover before renewal. We show the methodology used in the periodic rate will slightly differ from the application of the calculation below in renewal of a collection of information. calculations shown with the unrounded Table 4. For Year 4, this is equivalent As in the NPRM, the resulting rate of turnover rate. to 105 = [506 × (0.6745∧4)]. For Year 5, 32.55 percent turnover assumes that any In table 4 below, we calculated this is equivalent to 521 = [2,519 × mariner lost to turnover in a given year renewals by multiplying the total (0.6745∧4)]. For Year 6, this is is replaced by a mariner with an original number of original MMCs in a given equivalent to 1,033 = [4,993 × (0. MMC in order to maintain a stable starting year by the probability that an 0.6745∧4)]. For Year 7, this is equivalent population of mariners able to serve the individual would still be employed as a to 978= [4,725 × (0.6745∧4)]. For Year 8, total population of vessels. Apart from PIC after five years. Where this is equivalent to 1,077 = [5,204 × this updated turnover rate, we retained [(1¥0.3255)∧(5¥1) = (0.6745∧4)] is the (0.6745∧4)]. For Year 9 and all the methodology for calculating approximate probability of remaining, subsequent years, renewals become 777 renewals from the NPRM. All (0.6745) given a turnover rate of 0.3255, = [3,756 × (0.6745∧4)].

TABLE 4—SUMMARY OF AFFECTED POPULATION

Total Original Original Total Calendar year Effective affected MMCs New COIs MMCs from MMCs from original Renewals year vessels needed new COIs Turnover MMCs

2018 ...... 253 506 253 506 0 506 0 2019 ...... 1,430 2,860 1,177 2,354 165 2,519 0 2020 ...... Year 1...... 3,461 6,922 2,031 4,062 931 4,993 0 2021 ...... Year 2...... 4,697 9,394 1,236 2,472 2,253 4,725 0 2022 ...... Year 3...... 5,770 11,540 1,073 2,146 3,058 5,204 0 2023 ...... Year 4 ...... 5,770 11,540 0 0 3,756 3,756 105 2024 ...... Year 5 ...... 5,770 11,540 0 0 3,756 3,756 521 2025 ...... Year 6...... 5,770 11,540 0 0 3,756 3,756 1,033 2026 ...... Year 7 ...... 5,770 11,540 0 0 3,756 3,756 978 2027 ...... Year 8...... 5,770 11,540 0 0 3,756 3,756 1,077 2028 ...... Year 9 ...... 5,770 11,540 0 0 3,756 3,756 777 2029 ...... Year 10 ...... 5,770 11,540 0 0 3,756 3,756 777 Note: We rounded the numbers in the table for readability, but we did not round the turnover rate in our calculations. Additionally, the values in each column are not additive.

MMC before it expired so the date was set for a expiration of the current MMC to maximize the 22 {If(prior issue date <= [issues date + (365 × period not exceeding 8 months closest to the validity period. 6)],‘‘Renewed’’, ‘‘Not’’),‘‘Not’’}

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While we do not count cost savings The renewal cost of $220 is also 4 days of training. Similarly, the average for original MMCs obtained before 2020, unchanged from the NPRM and cost of a Dangerous Liquids course is we counted cost savings for avoided includes application fees and security $985.62 with almost all offerings being renewals of those MMCs since the screening fee. As a result, the total 5 days in duration with an average of 38 renewal would occur after the effective average cost for an individual to obtain hours of training. The length of the year of the final rule, 2020. an original MMC is $8,958, which is the training in days assumes an 8-hour day, same estimate we used in the NPRM. Cost Savings to Industry and that any part of an additional day Below is the analysis for estimating this would be considered a full day’s Cost savings from this rule come from total cost as it appeared in the NPRM. opportunity cost in order to account for the avoided cost of obtaining an MMC As of May 2019, the average cost of travel (that is, a mariner would not be for individuals that are able to use an a Basic Fire Fighting course is $731.31 LOD to qualify as a PIC rather than and ranges in length from 2 to 5 days able to leave training at noon and return obtaining an MMC. All of the depending on whether it is offered as a to work). Because very few of the components of the average cost are separate module or as part of the training facilities offer both courses— unchanged and include tuition for Basic International Convention on Standards and none of the training facilities offer Fire Fighting and Dangerous Liquids, of Training, Certification, and the courses concurrently—mariners application fees, security screening fee, Watchkeeping for Seafarers Basic would need to schedule each training travel, and the opportunity cost of the Training. We assume an average course course separately. See table 5 below for time to attend training for an applicant. length of 27 hours, which would require the summary of course costs.

TABLE 5—AVERAGE COURSE COSTS

Length Course Tuition Length (days Length (hours) (days) rounded)

Basic Fire Fighting ...... $731.31 3.27 4 27 Dangerous Liquids ...... 985.62 4.80 5 38

Summary ...... 1,716.93 8.07 9 65

In addition, 46 CFR 10.219 prescribes there is a security screening expense of from the VSO rule.26 In further analysis, the fees for obtaining an MMC with a $125.25.24 we use the average cost per mariner Tankerman-PIC endorsement. This The Coast Guard assumes varying weighted by the distribution of travel includes an evaluation fee of $95 and an modes of travel for mariners getting to type.27 We estimate the total travel cost issuance fee of $45. Every 5 years there and from approved training based on of the mariners to be about is a cost to renew the credential with the the distribution of travel modes derived $103,374,546, undiscounted. We endorsement, which includes a $50 in the Vessel Security Officer (VSO) estimate the average travel cost for a evaluation fee and a $45 issuance fee.23 Interim Rule.25 The percentages below mariner to be about $8,958, For the original issuance and renewal, in table 6 reflect the same percentages undiscounted.

TABLE 6—DISTRIBUTION OF TRAINING COSTS BY MODE OF TRANSPORTATION

Affected Mode of transport Distribution mariner Cost (%) population (2018 USD)

Commute ...... 26.50 3,058 $27,214,180 Drive/Lodge ...... 16.70 1,927 $15,672,417 Fly/Lodge ...... 56.80 6,555 $60,487,949

Total ...... 100 11,540 $103,374,546

Average Cost per Mariner ...... $8,958 Note: Totals may not sum due to independent rounding.

In table 7, we show the unit costs that different cost, while the costs of training per mariner includes the fixed costs of comprise the total costs to individuals courses and MMC applications are the the two approved training courses and in table 9. Each method of travel has a same for all travel types. The total cost travel costs. As travel costs are highly

23 From 46 CFR 10.219(a), Table 1—Fees. Using 25 73 FR 29060, May 20, 2008, ‘‘Implementation Commute, Drive/Lodge, and Fly/Lodge in 73 FR column ‘‘Evaluation then the fee is . . .’’ and rows of Vessel Security Officer Training and Certification 29060, 29065. ‘‘Original endorsement for ratings other than Requirements-International Convention on 27 We use the average cost because the qualified ratings’’ and ‘‘Renewal endorsement for Standards of Training, Certification and distribution in travel does not change in any given ratings other than qualified ratings.’’ Watchkeeping for Seafarers, 1978, as Amended’’ year. If the actual locations of individuals used to 24 Transportation Security Administration 30-Day rule corrected June 17, 2008 (73 FR 34190). notice. [Docket No. TSA–2006–24191] Revision of develop the baseline was known, then we could 26 Agency Information Collection Activity Under OMB See Table 4.—TOTAL NATIONAL SHARE OR base the distribution on actual travel. However, this Review: Transportation Worker Identification PERCENTAGE OF—Total National Share of information is not known and could not be known Credential (TWIC®) Program (82 FR 14521, March Percentage of VSOs THAT WILL COMMUTE, for every individual in each year. 21, 2017). DRIVE/LODGE, AND FLY/LODGE That Will

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variable, we obtained the most recent described in the source reference cost figures for travel and lodging, column. available from either 2017 or 2018, as

TABLE 7—UNIT TRAVEL COST ESTIMATES (ADJUSTED TO 2018 USD)

Unit Source Item cost reference

Opportunity cost of applicant time .. $60.66 ...... The total opportunity cost of time is the base wage multiplied by the loaded wage factor to obtain total compensation including non- wage benefits. $39.61 is the mean wage estimate from the 2019 National Occupation Employment and Wage Statistics for Captains, Mates, and Pilots of Water Vessels (53–5021) https://www.bls.gov/ oes/2018/may/oes535021.htm. The loaded wage factor of (33.11/ 21.62) is obtained by dividing the total compensation by wages and salaries for full-time transportation workers. These are annual aver- ages of quarterly data series CMU2010000520610D and CMU2020000520610D respectively, obtained from BLS Employer Cost for Employee Compensation https://www.bls.gov/data/. Driving Mileage (rate per mile) ...... $0.58 ...... ‘‘Privately Owned Vehicle Mileage Reimbursement Rates’’ from GSA tables published on January 1, 2019 https://www.gsa.gov/travel/ plan-book/transportation-airfare-rates-pov-rates/privately-owned-ve- hicle-pov-mileage-reimbursement-rates. Non-Commuting Driving Time...... 100 mile/27.08 mph commuting For a mariner who would drive/lodge to the school 100 miles round speed. trip, we divide 100 miles by the average commuting speed of 27.08 miles per hour (mph). We obtained 27.08 mph from the Federal Highway Administration’s Summary of Travel Trends, 2017. https:// www.fhwa.dot.gov/policyinformation/documents/2017_nhts_sum- mary_travel_trends.pdf page 79 Round-trip Air-Fare ...... $346 ...... From the U.S Department of Transportation, Bureau of Transpor- tation Statistics. Average price of a round-trip airfare for 2018 in unadjusted dollars. https://www.bts.gov/sites/bts.dot.gov/files/ Annual%20Fares%201995–2018.xlsx. Round-trip Airport Transfer ...... $61.28 ...... We used the cost of a round-trip airport transfer from a Coast Guard interim rule, ‘‘Validation of Merchant Mariners’ Vital Information and Issuance of Coast Guard Merchant Mariner’s Licenses and Certifi- cates of Registry’’, published on January 13, 2006 (71 FR 2154). Figure found in table 4, page 2,160. A later figure could not be found so this figure was adjusted for inflation using the GDP deflator factor of 1.23 times the original cost of $50. The round-trip airport transfer cost is based on research of the average private and public transfer costs, including taxi or car rental costs associ- ated with U.S. airports and regional destinations. It is not a mathe- matical or rigorous estimate, but an average transfer cost based on information available from associations and trade groups, airports, transit authorities, and governments. Flying Excursion Time ...... 16 hours ...... A mariner that would fly/lodge in order to attend a training course or school would incur an opportunity cost of flying. We assume the total air excursion time of 16 hours, equivalent to two days of trav- el. Incidentals and Meals (per diem) ... $64.57 ...... Obtained from the Composite of General Services Administration’s domestic per diem rates for meals/incidentals (https://www.gsa.gov/ travel/plan-book/per-diem-rates) in training site and REC cities for January 2018. Taxes ARE included in the M&IE rate per FAQ #12 https://www.gsa.gov/travel/plan-book/per-diem-rates/frequently- asked-questions-per-diem#12. Lodging (per night) ...... $142.16 ...... Obtained from the Composite of General Services Administration’s domestic per diem rates for lodging (https://www.gsa.gov/travel/ plan-book/per-diem-rates) training site, and REC cities for January 2018. Taxes are not automatically included, so lodging taxes and state sales taxes were added to the lodging per diem.

Table 8, ‘‘MMC Costs for Mariners,’’ travel and tuition contribute to the total cost of $8,957.93 is for each mariner shows how the above unit costs for average cost per mariner. The average expected to obtain an original MMC.

28 See 46 CFR 13.120 Renewal of tankerman endorsement.

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Tuition costs and travel costs do not original MMC. The Coast Guard the average travel cost for a mariner that apply for renewal if a mariner served at estimates the average travel cost for a flies and stays overnight for approved least 90 days of service during the mariner that commutes to approved training to be about $9,228.15. This cost preceding 5 years.28 If a mariner cannot training is about $8,899.05. The average analysis uses an average because the fulfill that service requirement, we travel cost for a mariner that drives and distribution of travel is constant year to assume that they turnover and must stays overnight for approved training is year. complete the requirements for an about $8,132.31. Finally, we estimate TABLE 8—MMC COSTS FOR MARINERS

Training cost by travel mode Category Derivation Amount Commuting Drive/Lodge Fly/Lodge

Tuition ...... Average price of $731.31 for Basic Fire- $1,716.93 $1,716.93 $1,716.93 $1,716.93 fighting, and $985.62 for Dangerous Liquids. MMC Fees ...... $95 evaluation fee ...... 140.00 140.00 140.00 140.00 $45 issuance fee ...... Security Screening Fee ...... $125.25 ...... 125.25 125.25 125.25 125.25 Round-trip Airfare ...... 346.00 ...... 346.00 NA NA 346.00 Round-trip Airport transfer ...... 61.28 ...... 61.28 NA NA 61.28 Lodging ...... 142.16 per lodging night × 9 lodging 1,279.45 NA 1,279.45 1,279.45 nights. Commuting Meals & Incidental Expenses ...... $48.43 per diem × 9 training days 435.86 435.86 NA NA (equivalent to 75% of full per diem). Non-Commuting Meals & Incidental Expenses ...... $64.57 per diem × (7 training days) + 645.71 NA 645.71 645.71 $48.43 × (4 first and last days of trav- el 75% of total). Commuting Motor Vehicle Costs ...... 100-mile commute × $0.58 per mile × 9 522.00 522.00 NA NA training days. Non-Commuting Motor Vehicle Costs ...... 100-mile round-trip × $0.58 per mile ...... 58.00 NA 58.00 NA Training Time (Opportunity Cost) ...... 65 hrs. training × loaded hourly wage .... 3,942.95 3,942.95 3,942.95 3,942.95 Commuting Driving Time (Opportunity Cost) ...... (100-mile round trip ÷ 27 mph com- 2,016.05 2,016.05 NA NA muting speed) × loaded hourly wage × 9 days. One Non-Commuting Driving Time (Opportunity Cost) ...... (100-mile round trip ÷ 27 mph com- 224.01 NA 224.01 NA muting speed) × loaded hourly wage. One Flying Time (Opportunity Cost) ...... 16 hours × loaded hourly wage ...... 970.57 NA NA 970.57

Total Cost per Mariner ...... 8,899.05 8,132.31 9,228.15

We estimate the cost to individuals to using a 7-percent discount rate. We the individual costs apply to the generate a present-value discounted cost estimate annualized cost savings to be affected population, reflected in the savings of about $265,559,822 over a 10- about $37,809,744, using a 7-percent number of original MMCs and renewals, year period of analysis, in 2018 dollars discount rate. In table 9, we show how to generate the total cost savings. TABLE 9—ESTIMATED COST SAVINGS TO INDIVIDUALS

Renewal Original Total cost fee + Total annual Total annual Grand total Grand total Grand total Calendar year MMCs of original Renewals security cost of new cost of annual cost annual cost annual cost MMC screening MMCs renewals discounted 7% discounted 3%

2018 ...... 506 ...... 2019 ...... 2,519 ...... 2020 ...... 4,993 $8,958 ...... $44,726,583 ...... $44,726,583 $41,800,544 $43,423,867 2021 ...... 4,725 8,958 ...... 42,327,834 ...... 42,327,834 36,970,769 39,898,043 2022 ...... 5,204 8,958 ...... 46,615,639 ...... 46,615,639 38,052,248 42,659,914 2023 ...... 3,756 8,958 105 $220 33,649,426 $23,066 33,672,491 25,688,582 29,917,572 2024 ...... 3,756 8,958 521 220 33,649,426 114,814 33,764,240 24,073,436 29,125,330 2025 ...... 3,756 8,958 1,033 220 33,649,426 227,602 33,877,028 22,573,694 28,371,477 2026 ...... 3,756 8,958 978 220 33,649,426 215,396 33,864,821 21,089,309 27,535,199 2027 ...... 3,756 8,958 1,077 220 33,649,426 237,215 33,886,641 19,722,333 26,750,427 2028 ...... 3,756 8,958 777 220 33,649,426 171,233 33,820,659 18,396,198 25,920,719 2029 ...... 3,756 8,958 777 220 33,649,426 171,233 33,820,659 17,192,708 25,165,747

Total ...... 370,376,595 265,559,822 318,768,294 Annualized ...... 37,809,744 37,369,369 Note: Totals may not sum due to independent rounding; we do not round the turnover rate in our calculations, which carries throughout the table.

Cost Incurred To Prepare Letter of time to prepare. Using the time estimate hourly wage of $53.39 for a cost of about Designation from the existing collection of $8.92.29 Over a 10-year period of information for PICs, we assume the analysis, we estimate the total While the use of an LOD saves the preparation of a letter takes discounted cost of writing LODs to be individual approved training costs, the approximately 10 minutes at a loaded about $263,603 in 2018 dollars, using a actual letter of designation still takes

28 See 46 CFR 13.120 Renewal of tankerman Control Number 1625–0072) last updated in 2018. salaries for full-time transportation workers. These endorsement. $34.86 is the mean hourly wage estimate from the are annual averages of quarterly data series 29 From OMB Control Number 1625–0072 (ICR 2018 National Occupation Employment and Wage CMU2010000520610D and CMU2020000520610D Statistics for Compliance Officers (13–1041) https:// 201803–1625–007) ¥ 0.167 hours equals respectively, obtained from BLS Employer Cost for www.bls.gov/oes/2018/may/oes131041.htm. The Employee Compensation (https://www.bls.gov/data/ approximately 10 minutes from Table 12.3 in loaded wage factor of ($33.11/$21.62) is obtained by Appendix A of ICR 201803–1625–007 (OMB dividing the total compensation by wages and ).

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7 percent discount rate. We estimate the annualized cost to be about $37,531, annualized cost to be about $37,531, using a 7 percent discount rate. using a 7 percent discount rate.

TABLE 10—ESTIMATED COSTS INCURRED TO PREPARE LETTER OF DESIGNATION

Cost of Grand total Grand total Individuals preparing Total annual annual cost annual cost Year needing a LOD per cost of discounted discounted new LOD Mariner preparing LOD 7% 3%

1 ...... 4,993 $8.92 $44,515 $41,603 $43,218 2 ...... 4,725 8.92 42,127 36,796 39,709 3 ...... 5,204 8.92 46,395 37,872 42,458 4 ...... 3,756 8.92 33,490 25,549 29,756 5 ...... 3,756 8.92 33,490 23,878 28,889 6 ...... 3,756 8.92 33,490 22,316 28,047 7 ...... 3,756 8.92 33,490 20,856 27,231 8 ...... 3,756 8.92 33,490 19,492 26,437 9 ...... 3,756 8.92 33,490 18,216 25,667 10 ...... 3,756 8.92 33,490 17,025 24,920

Total ...... 367,468 263,603 316,333 Annualized ...... 37,531 37,084 Note: Totals may not sum due to independent rounding; we do not round the turnover rate in our calculations, which carries throughout the table.

Cost Savings to Government serve as a PIC for fuel oil transfers. The would save a discounted amount of Without this deregulatory action, the avoided cost per MMC application is 55 about $1,471,506 in 2018 dollars, using Coast Guard would need to evaluate the minutes of review by a GS–8 employee a 7 percent discount rate. We estimate MMC applications that would be for an avoided cost of about $44.92. As the annualized savings amount to be submitted if an MMC with a Tankerman shown in table 11, over a 10-year period about $209,509, using a 7 percent PIC endorsement were still required to of analysis, we estimate the Coast Guard discount rate.

TABLE 11—ESTIMATED COST SAVINGS TO COAST GUARD OF THE FINAL RULE

Cost of Cost of Grand total Grand total Effective Original reviewing reviewing Grand total annual cost annual cost year MMC original Renewals renewed annual cost discounted discounted applications MMC MMC 7% 3%

1 ...... 4,993 $44.92 ...... $224,267 $209,595 $217,735 2 ...... 4,725 44.92 ...... 212,239 185,378 200,056 3 ...... 5,204 44.92 ...... 233,739 190,801 213,904 4 ...... 3,756 44.92 105 44.92 173,428 132,307 154,089 5 ...... 3,756 44.92 521 44.92 192,139 136,992 165,741 6 ...... 3,756 44.92 1,033 44.92 215,140 143,357 180,177 7 ...... 3,756 44.92 978 44.92 212,651 132,428 172,905 8 ...... 3,756 44.92 1,077 44.92 217,101 126,355 171,381 9 ...... 3,756 44.92 777 44.92 203,645 110,769 156,077 10 ...... 3,756 44.92 777 44.92 203,645 103,523 151,531

Total ...... 2,087,993 1,471,506 1,783,594 Annualized ...... 209,509 209,092 Note: Totals may not sum due to independent rounding; we do not round the turnover rate in our calculations, which carries throughout the table.

Net Cost Savings discounted back to 2016 assuming reviewing MMCs. Net cost savings are implementation begins in 2020. The the total cost savings minus the costs Using a perpetual period of analysis, total cost savings is the sum of the cost incurred, shown in table 12. We the Coast Guard estimates the total savings to individuals no longer estimate the net cost savings of this final annualized cost savings of the final rule obtaining MMCs, shown in table 9, and rule over a 10-year period of analysis to to be $26,323,316 in 2016 dollars, using the time cost savings to the Coast Guard, be about $266,767,725 in 2018 dollars, a 7 percent discount rate and shown in table 11, of no longer using a 7 percent discount rate.

TABLE 12—ESTIMATED NET COST SAVINGS OF THE FINAL RULE

Costs Net cost Annualized Cost savings incurred savings cost savings

Grand Total ...... $372,464,588 $367,468 $372,097,120 ......

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TABLE 12—ESTIMATED NET COST SAVINGS OF THE FINAL RULE—Continued

Costs Net cost Annualized Cost savings incurred savings cost savings

Discounted, 7% ...... 267,031,327 263,603 266,767,725 $37,981,722 Discounted, 3% ...... 320,551,888 316,333 320,235,556 37,541,376

Alternatives alternative, the existing policy letter analysis of the proposed rule, therefore We considered three alternatives in would continue to provide a means for we adopt the preliminary analysis as this final rule, including the preferred individuals on towing vessels final. alternative. The first alternative is to let previously designated as PIC of a fuel Our analysis of the impacts on small the policy letter expire and continue to oil transfer using an LOD to be issued entities from the NPRM has not require formal training for Tankerman- a limited endorsement Tankerman-PIC changed; we present this analysis for the PIC for any fuel oil transfer. The second restricted to Fuel Transfers. final rule below. Although one commenter on the alternative is to continue to issue NPRM requested that the limited In lieu of current revenue figures that limited endorsement MMCs with endorsement be continued in addition may be distorted by ongoing Tankerman-PIC Restricted to Fuel Oil to the use of the LOD, the Coast Guard inspections, for this analysis we use the Transfers on Towing Vessels. The third, rejected this alternative because while it small entity impact analysis of the 2016 and preferred, alternative is extend use achieves similar benefits as the Subchapter M rule, which we assume of an LOD to qualify as a PIC for fuel preferred alternative, it provides neither will be closely representative of oil transfers to inspected vessels. a full solution nor an adequate long- revenues after the inspection period is (1) MMC with officer or Tankerman- term alternative for designating the PIC over. The 2016 rule’s small entity PIC endorsement (No Limited of a fuel oil transfer—and it is more impact analysis used a sample of 304 Endorsement). costly than the preferred alternative. vessels from the initially estimated Continue to require inspected vessels 30 The policy letter only applies to one population of 5,509. Of the 304 with a fuel oil capacity of 250 barrels or industry segment, and individuals who vessels, about 59 percent were owned or more—or that obtain fuel oil from a obtain an MMC according to the policy operated by a small entity. We assume vessel with a fuel oil capacity of 250 letter would still incur the cost of the same number of small entities barrels or more—to have an individual renewing their credential every 5 years. would be impacted going forward but holding an MMC with either an officer (3) Preferred Alternative—new will know better once inspections are or Tankerman-PIC endorsement regulatory action allowing use of LODs completed and all fleets resume active designated as the PIC of any fuel oil for inspected vessels. status. As this is a deregulatory action, transfer. Under this alternative, any Under this alternative, the Coast most of the impact is cost savings to designated PIC of a fuel oil transfer Guard would provide the option for individuals, who do not qualify as small would be required to hold an MMC with inspected vessels to designate the PIC of entities. The only impact to small an officer or Tankerman-PIC a fuel oil transfer utilizing an LOD. entities is the cost imposed to industry endorsement, without a limited Under a new regulatory action, the as the time cost of preparing the LOD. endorsement for fuel oil transfers. Coast Guard would provide flexibility to The Coast Guard found the average The Coast Guard rejected this all inspected vessels in how they alternative because it does not generate annual cost to be $75.91 based on the designate the PIC of a fuel oil transfer. known fleet sizes of all towing vessel more benefits than the preferred This is the preferred alternative because alternative and there are no cost savings entities. For this analysis, we make the it relieves a regulatory burden for most conservative assumption that associated with it and it would not meet individuals who would have to obtain the Coast Guard’s goal of reducing entities would need to prepare LODs for and renew a credential while also their entire fleet every year and compare regulations under Executive Order providing flexibility to industries—and 13771. Individuals would still bear the that to the revenue of the lowest earning it tends to provide the benefit of vessel fleet. cost of obtaining an MMC, and after a specific training. vessel receives its COI, individuals The average annual unit cost takes the previously qualified as PIC through the B. Small Entities number of vessels in a fleet—multiplied LOD options would not be able to be Under the Regulatory Flexibility Act, by the cost of preparing a letter, $8.92, designated as a PIC until they obtain 5 U.S.C. 601–612, we have considered and multiplied by 2—to account for their MMC. whether this rule would have a each of the two PICs needed per vessel. (2) Continue to Issue Limited significant economic impact on a This average varies by the number of Endorsement MMCs with Tankerman- substantial number of small entities. vessels in an entity’s fleet, see the PIC Restricted to Fuel Oil Transfers on The term ‘‘small entities’’ comprises distribution below. Note that the Towing Vessels. small businesses, not-for-profit number of vessels in a fleet does not Under this alternative the Coast Guard organizations that are independently correlate with company size; a small would continue to utilize the CG–MMC owned and operated and are not business may have a large fleet or a large Policy Letter 01–17 to issue MMC dominant in their fields, and business may have a small fleet. On endorsements for Tankerman-PIC governmental jurisdictions with average, the cost incurred per entity is Restricted to Fuel Transfers on Towing populations of less than 50,000. We $75.91, which is on average 0.0152 Vessels. Under this continued action received no comments on the threshold percent of total annual revenues.31

30 See 81 FR 40003, June 20, 2016. vessels of the original 5,509 vessels, data from the the total annual revenues are known, ‘‘Average Cost 31 While fleet size is known for all 1,295 entities original FRFA of Inspection of Towing Vessels final as a % of Total revenue’’ is based only on entities covering the entire affected population of vessels, rule (81 FR 40003). In Table 14, ‘‘Average cost’’ is for whom revenue is known. revenues are known only for a sample of 183 based on the entire population of entities for which

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TABLE 13—ESTIMATED AVERAGE COST OF THE FINAL RULE ON SMALL ENTITIES BY FLEET SIZE

Average cost Fleet size category Description Number of Average cost as % of entities total revenue

Small_1 ...... Entity with only one vessel ...... 611 $17.83 0.0011 Small_2–5 ...... Entity with 2 to 5 vessels ...... 571 52.25 0.0037 Medium ...... Entity with 6 to 25 vessels ...... 179 194.05 0.0292 Large ...... Entity with > 25 vessels ...... 32 873.17 0.0072 Average ...... All fleet sizes ...... 75.91 0.0152

In the most conservative case, for a revenues for the affected population— approximately $321 for a fleet of 18 medium-sized fleet owned by the entity the cost imposed by this rule is still less vessels, 0.76 percent of their $42,000 with the lowest revenue amount in the than 1 percent of total revenues. In this annual revenue amount.32 On average, sample—which would have the highest conservative example, the entity’s the cost incurred is less than a quarter possible cost as percentage of total estimated annual cost would be of one percent of revenues.

TABLE 14—DISTRIBUTION OF REVENUE IMPACTS ON SMALL ENTITIES

Percentage of Percent Average Small entities small entities revenue impact annual impact with known revenue with known revenue (%)

<1% $75.91 183 100 1–3% 75.91 0 0 >3% 75.91 0 0

Since the most conservative case responsiveness to small business. If you actions. The title and description of the shows that the impact of this rule would wish to comment on actions by information collections, a description of be less than 1 percent of total annual employees of the Coast Guard, call 1– those who must collect the information, revenues, we assume that the impact 888–REG–FAIR (1–888–734–3247). and an estimate of the total annual will be less than 1 percent of total burden follow. The estimate covers the D. Collection of Information annual revenues for 100 percent of the time for reviewing instructions, small entities in our sample size. The Paperwork Reduction Act of 1995 searching existing sources of data, Therefore, the Coast Guard certifies (44 U.S.C. 3501–3520) requires the U.S. gathering and maintaining the data under 5 U.S.C. 605(b) that this rule will Coast Guard to consider the impact of needed, and completing and reviewing not have a significant economic impact paperwork and other information the collection. on a substantial number of small collection burdens imposed on the Title: Waste Management Plans, entities. public. Under 44 U.S.C. Refuse Discharge Logs, and Letters of 3506(c)(1)(B)(iii)(V) and 5 CFR Designation 33 for Certain Persons-in- C. Assistance for Small Entities 1320.8(b)(3)(vi), an agency may not Charge (PIC) and Great Lakes Dry Cargo Under section 213(a) of the Small collect or sponsor the collection of Residue Recordkeeping. Business Regulatory Enforcement information, nor may it impose an OMB Control Number: 1625–0072 Fairness Act of 1996, Public Law 104– information collection requirement Summary of the Collection of 121, we offer to assist small entities in unless it displays a currently valid Information: The Letter of Designation, understanding this rule so that they can Office of Management and Budget which is issued by the operator or agent better evaluate its effects on them and (OMB) control number. of a vessel, designates the holder as the participate in the rulemaking. The Coast The collection of information under PIC for the transfer of fuel oil and Guard will not retaliate against small this final rule falls under the same documents that the holder has received entities that question or complain about collection of information already sufficient formal instruction from the this rule or any policy or action of the required for letters of designation operator or agent of the vessel to meet Coast Guard. described in OMB Control Number the requirements of 33 CFR 155.715. As Small businesses may send comments 1625–0072. This final rule does not amended by this rule, § 155.710(e) will on the actions of Federal employees change the content of responses, nor the now permit LODs to be used on who enforce, or otherwise determine estimated burden of each response, but inspected vessels in addition to compliance with, Federal regulations to does increase the number of annual uninspected vessels. the Small Business and Agriculture respondents and responses from 190 to Need for Information: This Regulatory Enforcement Ombudsman 3,756. information is needed to ensure that: (1) and the Regional Small Business As defined in 5 CFR 1320.3(c), Certain U.S. vessels develop and Regulatory Fairness Boards. The ‘‘collection of information’’ comprises maintain a waste plan; (2) certain U.S. Ombudsman evaluates these actions reporting, recordkeeping, monitoring, vessels maintain refuse discharge annually and rates each agency’s posting, labeling, and other similar records; (3) certain individuals that act

32 The value of $42,000 comes from the original 33 As stated in the Discussion of the Rule section, Designation’’ should consistently be called a ‘‘Letter FRFA of 81 FR 40003, June 20, 2016. this rule is amending 33 CFR 155.715 to make it of Designation.’’ We are amending the title of this clear that the letter that has been referred to as both collection of information to reflect that change. a ‘‘Letter of Instruction’’ and a ‘‘Letter of

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as fuel oil transfer PIC receive an LOD regulation by the Coast Guard. It is also J. Indian Tribal Governments for both vessel safety and prevention of well settled that all of the categories This rule does not have tribal pollution; and (4) certain Great Lakes covered in 46 U.S.C. 3306, 3703, 7101, implications under Executive Order vessels conduct dry cargo residue and 8101 (design, construction, 13175 (Consultation and Coordination recordkeeping. alteration, repair, maintenance, with Indian Tribal Governments), Use of Information: To ensure that operation, equipping, personnel because it will not have a substantial fuel oil transfer competency standards qualification, and manning of vessels), direct effect on one or more Indian are met, all PICs on uninspected or as well as the reporting of casualties and tribes, on the relationship between the inspected vessels must carry a Letter of any other category in which Congress Federal Government and Indian tribes, Designation if they do not hold an MMC intended the Coast Guard to be the sole or on the distribution of power and with either an officer endorsement or a source of a vessel’s obligations, are responsibilities between the Federal Tankerman-PIC endorsement. within the field foreclosed from Government and Indian tribes. Description of Respondents: regulation by the States. See the Compliance officers for entities Supreme Court’s decision in United K. Energy Effects conducting transfers of fuel oil and States v. Locke and Intertanko v. Locke, We have analyzed this rule under needing to designate a PIC of such 529 U.S. 89, 120 S.Ct. 1135 (2000). This Executive Order 13211 (Actions transfers. rule, as promulgated under 46 U.S.C. Concerning Regulations That Number of Respondents: The 3306 and 3703, concerns personnel Significantly Affect Energy Supply, currently OMB-approved number of qualifications because it will amend Distribution, or Use). We have respondents is 190, we are requesting an requirements for who may serve as the determined that it is not a ‘‘significant increase of 3,566 respondents for a total PIC of fuel oil transfers on inspected energy action’’ under that order because of 3,756. The reason for the increase is vessels. Therefore, because the States it is not a ‘‘significant regulatory action’’ the number of PICs who choose the LOD may not regulate within these under Executive Order 12866 and is not option, or 11,540 PICs multiplied by the categories, this rule is consistent with likely to have a significant adverse effect attrition rate of 0.3255, or PICs who the fundamental federalism principles on the supply, distribution, or use of leave the industry over a given period and preemption requirements described energy. of time. in Executive Order 13132. Burden of Response: 0.167 hours per L. Technical Standards and response. F. Unfunded Mandates Incorporation by Reference Estimate of Total Annual Burden: The The National Technology Transfer currently OMB-approved burden hours The Unfunded Mandates Reform Act and Advancement Act, codified as a is 32, we are requesting an increase of of 1995, 2 U.S.C. 1531–1538, requires note to 15 U.S.C. 272, directs agencies 595 hours (11,540 PICs × 0.3255 × 0.167 Federal agencies to assess the effects of to use voluntary consensus standards in hours, the time it takes for a PIC to their discretionary regulatory actions. In their regulatory activities unless the create a letter of instruction) for a total particular, the Act addresses actions agency provides Congress, through of 627 hours. The reason for the increase that may result in the expenditure by a OMB, with an explanation of why using is due to the increase in the number of State, local, or tribal government, in the these standards would be inconsistent PICs who choose the LOD option. aggregate, or by the private sector of with applicable law or otherwise As required by 44 U.S.C. 3507(d), we $100,000,000 (adjusted for inflation) or impractical. Voluntary consensus will submit a copy of this rule to OMB more in any one year. Although this rule standards are technical standards (for for its review of the collection of will not result in such expenditure, we example, specifications of materials, information. You are not required to do discuss the effects of this rule performance, design, or operation; test respond to a collection of information elsewhere in this preamble. methods; sampling procedures; and unless it displays a currently valid OMB G. Taking of Private Property related management systems practices) control number. that are developed or adopted by We received no comments on this This rule will not cause a taking of voluntary consensus standards bodies. collection of information, so we are private property or otherwise have This rule does not use technical updating the population numbers as taking implications under Executive standards. Therefore, we did not necessary and are adopting the Order 12630 (Governmental Actions and consider the use of voluntary consensus collection of information from the Interference with Constitutionally standards. NPRM as final. Protected Property Rights). M. Environment E. Federalism H. Civil Justice Reform We have analyzed this rule under A rule has implications for federalism Department of Homeland Security under Executive Order 13132 This rule meets applicable standards Management Directive 023–01, Rev. 1, (Federalism) if it has a substantial direct in sections 3(a) and 3(b)(2) of Executive associated implementing instructions, effect on States, on the relationship Order 12988 (Civil Justice Reform) to and Environmental Planning between the national government and minimize litigation, eliminate COMDTINST 5090.1 (series), which the States, or on the distribution of ambiguity, and reduce burden. guide the Coast Guard in complying power and responsibilities among the I. Protection of Children with the National Environmental Policy various levels of government. We have Act of 1969 (42 U.S.C. 4321–4370f), and analyzed this rule under Executive We have analyzed this rule under have made a determination that this Order 13132 and have determined that Executive Order 13045 (Protection of action is one of a category of actions that it is consistent with the fundamental Children from Environmental Health do not individually or cumulatively federalism principles and preemption Risks and Safety Risks). This rule is not have a significant effect on the human requirements described in Executive an economically significant rule and environment. A Record of Order 13132. Our analysis follows. will not create an environmental risk to Environmental Consideration It is well settled that States may not health or risk to safety that might supporting this determination is regulate in categories reserved for disproportionately affect children. available in the docket. For instructions

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on locating the docket, see the designating him or her as a PIC, unless between the hours of 8:00 a.m. and 4:30 ADDRESSES section of this preamble. equivalent evidence is immediately p.m., Monday through Friday (except This rule is categorically excluded available aboard the vessel or at his or holidays). Please call (202) 461–4902 for under paragraph L56 of Appendix A, her place of employment. an appointment. (This is not a toll-free Table 1 of DHS Instruction Manual 023– * * * * * number.) In addition, during the 01–001–01, Rev. 01. Paragraph L56 comment period, comments may be pertains to the training, qualifying, § 155.715 [Amended] viewed online through the Federal licensing, and disciplining of maritime ■ 3. In § 155.715, remove the text ‘‘letter Docket Management System (FDMS) at personnel. This rule involves letters of of instruction required in http://www.regulations.gov. designation to assign PICs of fuel oil § 155.710(e)(2)’’ and add in its place the FOR FURTHER INFORMATION CONTACT: transfers on inspected vessels. text ‘‘letter referenced in Lucinda Potter, MSW, LSW, Ethics List of Subjects in 33 CFR Part 155 § 155.710(e)(1)’’. Policy Consultant, National Center for Dated: May 21, 2020. Ethics in Health Care (10E1E), Veterans Alaska, Hazardous substances, Oil Health Administration, 810 Vermont R.V. Timme, pollution, Reporting, and recordkeeping Ave. NW, Washington, DC 20420; 484– requirements. Rear Admiral, U.S. Coast Guard, Assistant 678–5150, [email protected]. (This Commandant for Prevention Policy. For the reasons discussed in the is not a toll-free number). [FR Doc. 2020–11366 Filed 5–26–20; 8:45 am] preamble, the Coast Guard amends part SUPPLEMENTARY INFORMATION: Section 155 as follows: BILLING CODE 9110–04–P 7331 of title 38, United States Code (U.S.C.), requires, in relevant part, that PART 155—OIL OR HAZARDOUS the Secretary of Veterans Affairs, upon MATERIAL POLLUTION PREVENTION DEPARTMENT OF VETERANS the recommendation of the Under REGULATIONS FOR VESSELS AFFAIRS Secretary for Health, prescribe regulations to ensure, to the maximum ■ 1. The authority citation for part 155 38 CFR Part 17 is revised to read as follows: extent practicable, that all VA patient RIN 2900–AQ97 care be carried out only with the full Authority: 3 U.S.C. 301 through 303; 33 and informed consent of the patient, or U.S.C. 1321(j), 1903(b), 2735; 46 U.S.C 3306, Informed Consent and Advance in appropriate cases, a representative 3703, 70011, 70034; E.O. 12777, 56 FR 54757, Directives 3 CFR, 1991 Comp., p. 351; Department of thereof. Based on VA’s interpretation of this statute and our mandate in 38 Homeland Security Delegation No. 0170.1. AGENCY: Department of Veterans Affairs. Section 155.1020 also issued under section U.S.C. 7301(b) to provide a complete ACTION: Interim final rule. 316 of Pub. L. 114–120. Section 155.480 also medical and hospital service, we issued under section 4110(b) of Pub. L. 101– SUMMARY: The Department of Veterans recognize that patients with decision- 380. Affairs (VA) amends its regulation making capacity have the right to state Note: Additional requirements for vessels regarding informed consent and their treatment preferences in a VA or carrying oil or hazardous materials are advance directives. We amend the other valid advance directive. VA’s use contained in 46 CFR parts 30 through 40, regulation by reorganizing it and and recognition of advance directives is 150, 151, and 153 amending language where necessary to also consistent with practice in the ■ 2. Amend § 155.710 as follows: enhance clarity. In addition, we amend health care industry at large; for ■ a. In paragraph (e) introductory text, the regulation to facilitate the informed instance, a condition of participation in remove the word ‘‘shall’’ and add in its consent process, the ability to the Medicare program requires place the word ‘‘must’’; communicate with patients or providers to agree to abide by the ■ b. Revise paragraph (e)(1); surrogates through available modalities requirements of the Patient Self- ■ c. Remove paragraph (e)(2); of communication, and the execution Determination Act of 1990 (codified at ■ d. Redesignate paragraphs (e)(3) and and witness requirements for a VA 42 U.S.C. 1395cc(f)), which, among (4) as paragraphs (e)(2) and (3), Advance Directive. other things, requires participating providers to inform patients of their respectively; and DATES: rights under state law to indicate ■ e. In newly redesignated paragraph Effective date: This final rule is treatment preferences, including the (e)(2), remove the text ‘‘or (2)’’. effective May 27, 2020. right to accept or refuse medical or The revision reads as follows: Comment date: Comments must be surgical treatment, in an advance received by VA on or before July 27, § 155.710 Qualifications of person in directive. charge. 2020. VA regulations at 38 CFR 17.32 * * * * * ADDRESSES: Written comments may be establish standards for obtaining (e) * * * submitted through www.regulations.gov; informed consent from a patient for a (1) On each inspected vessel required by mail or hand-delivery to the Director, medical treatment or a diagnostic or by 46 CFR chapter I to have an officer Office of Regulation Policy and therapeutic procedure and standards for aboard, and on each uninspected vessel, Management (00REG), Department of advance care planning; that is, the either: Veterans Affairs, 810 Vermont Ave. NW, process by which a patient documents (i) Holds a valid merchant mariner Room 1064, Washington, DC 20420; or in an advance directive his or her future credential issued under 46 CFR chapter by fax to (202) 273–9026. Comments treatment preferences (encompassing I, subchapter B, with an endorsement as should indicate that they are submitted medical, surgical, and mental health master, mate, pilot, engineer, or operator in response to ‘‘RIN 2900–AQ97— care) to be relied on in the event the aboard that vessel, or holds a valid Informed Consent and Advance patient loses the capacity to make health merchant mariner credential endorsed Directives.’’ Copies of comments care decisions. We revise this section as Tankerman-PIC; or received will be available for public and publish it as an interim final rule (ii) Carries a letter satisfying the inspection in the Office of Regulation to ensure that informed consent requirements of § 155.715 and Policy and Management, Room 1064, procedural and process changes are in

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place immediately to address the urgent (or Psychiatric) Advance Directive. We VA. It is executed by patients whose and emergent clinical care needs of amend the witness requirement for future decision-making capacity is at patients related to delivery of health advance directives to allow family risk due to mental illness, and it allows care services and for future health care members who are VA employees to them to indicate preferences about their decisions during the SARS-CoV–2 virus serve as witness to the signing of a VA future mental health care. We likewise outbreak and the disease it causes Advance Directive (if not otherwise add the Department of Defense (DoD) named the ‘‘Coronavirus Disease 2019’’ precluded from serving as witness Advance Medical Directive to the list of (COVID–19) which has been declared a under the regulation), and remove advance directives recognized by VA. national emergency. The changes to restrictions on certain other VA This addition gives equal legal current informed consent procedures employees serving as witness to the recognition to DoD-authorized advance and requirements, as described herein, signing of a VA Advance Directive. directives executed for members of the are needed for the reasons explained, Finally, we add a mechanism to allow armed services or military dependents but the current national emergency has a patient who, due to a physical under 10 U.S.C. 1044C. made it particularly vital that they be impairment, is unable to execute a We revise material in former implemented immediately to deal with signature on a signature consent form to paragraph (h)(1) to formulate a COVID-related treatment setting sign with an ‘‘X’’, a thumbprint, or a definition for a VA advance directive, challenges (to include those arising from stamp on the form. Signature by use of which is one example within the VA’s announced contingent (formerly an ‘‘X’’, thumbprint, or stamp is also broader category of advance directives. ‘‘crisis’’) standards of care during the available to a patient who, because of a We specify that a VA advance directive COVID national emergency, VA’s physical impairment, cannot sign a VA is completed on a form that is specified recognition of scarce resources during Advance Directive and to a third party by VA and can be used to designate a this emergency requiring changes to who is signing the directive at the health care agent and to document resources allocations, to include staffing direction and in the presence of the treatment preferences for medical care, decisions, changes in treatment patient. including mental health care. This locations, etc.), greater use of telehealth The title to prior § 17.32 is ‘‘Informed language combines and condenses services, and CDC guidance (to include consent and advance care planning.’’ language found in former paragraph (a). social distancing requirements and We change ‘‘advance care planning’’ to VA believes that the amendment separation of infected patients from ‘‘advance directives’’ as we believe this improves consistency by incorporating other patients) issued for this highly term is more commonly used and all of the relevant definitions in the infectious disease crisis. This is understood by the public. These and definitions section rather than addressed in greater detail under the other changes are discussed below in interspersing them throughout the Administrative Procedures Act section, greater detail. section. where we set forth the good cause Definitions We make minor non-substantive reasons supporting this approach. We begin by amending the definitions changes to the definitions of a State- As discussed in detail below, we found in paragraph (a). Former authorized advance directive, close amend that rule by reorganizing it and paragraph (a) defined three types of friend, legal guardian, and signature amending language where necessary to advance directive recognized by VA: a consent, to clarify the meaning of these enhance clarity. We amend the VA Living Will; a VA Durable Power of terms. definition of practitioner to expand the Attorney for Health Care; and State- Decision-making capacity is a key types of health care professionals Authorized Advance Directives. We concept in both informed consents for authorized to obtain informed consent amend the definition of VA Living Will clinical treatments and procedures and from a patient and define the scope of to clarify the purpose of a living will, advance directives. We previously information that must be provided as which is to document the personal defined decision-making capacity to part of the informed consent discussion. preferences of an individual regarding mean the ability to understand and We establish the type of documentation future treatment options. We change the appreciate the nature and consequence required both when a patient consents term from ‘‘VA Living Will’’ to ‘‘Living of health care decisions. We amend the to treatments and procedures that are Will’’ to clarify that the definition is definition of decision-making capacity low risk and within broadly-accepted applicable to an instrument serving that to also state that it includes the ability standards of medical practice and to purpose, regardless of whether the to formulate a judgment and those necessitating signature consent. document is a VA form or not. For a communicate a clear decision We expand the approved similar reason we change the term ‘‘VA concerning clinical treatments and communication modalities that may be Durable Power of Attorney for Health procedures. We believe it is appropriate used by VA when an in-person Care’’ to ‘‘Durable Power of Attorney for to include this clarification in the discussion with a patient or surrogate Health Care.’’ Durable Power of definition of decision-making capacity, regarding a proposed treatment or Attorney for Health Care is defined as a because each of these elements is procedure is impracticable. We remove type of advance directive in which an evaluated by a practitioner when the special process related to consent for individual designates another person as determining whether a patient has unusual or extremely hazardous a health care agent to make health care decision-making capacity. treatments or procedures (long decisions on behalf of the individual. The definition of health care agent in interpreted in regulation as including VA believes that the best interests of former paragraph (a) is amended to those that may result in irreversible veterans who have either a Mental clarify the powers and duties of a health brain damage or sterilization) as VA no Health Advance Directive or a DoD care agent. The amended language states longer performs such treatments or Advance Medical Directive are served that a health care agent is the individual procedures. We amend the definition of by VA formally recognizing these types named by the patient in a durable power advance directive to include two other of advance care planning instruments. of attorney for health care to make types that VA recognizes: The We therefore add a Mental Health (or health care decisions on the patient’s Department of Defense Advance Psychiatric) Advance Directive to the behalf, including decisions regarding Medical Directive and a Mental Health list of advance directives recognized by the use of life-sustaining treatments,

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when the patient can no longer make standing, actionable, and portable informed consent also encompasses a such decisions. medical orders. Critically ill incoming patient’s right to refuse, or withhold For purposes of obtaining informed patients with SAPOs need to have their consent, for a medical procedure or consent for medical treatment, we SAPOs translated into and followed course of treatment recommended by a previously defined ‘‘practitioner’’ to within the VA health care system, no health care provider. We therefore include any physician, dentist, or health matter where they are being treated by update language in paragraph (b) to care professional who has been granted VA. This definition codifies in reflect the established legal and ethical specific clinical privileges to perform regulation what these are, helping the principle that patients receiving the treatment or procedure, including field to also understand the distinction treatments and procedures within the medical and dental residents and other between SAPOs and advance directives. VA health care system have the right to appropriately trained health care While an advance directive is normally accept or refuse any medical treatment professionals designated by VA retained by the patient in a safe and or procedure recommended to them. We regardless of whether they have been secure place, SAPO are designed to be also amend the former first sentence in granted clinical privileges. The retained on or near the patient so that paragraph (b) to state that except as responsibility to obtain informed the orders are easily accessible to otherwise provided in § 17.32, no consent for medical treatment from the emergency medical personnel or other medical treatment or procedure may be patient was formerly assigned to the health care personnel and also travel performed without the prior, voluntary practitioner who has primary with the patient whenever the patient is informed consent of the patient. responsibility for the patient or who transported to or from a health care Prior to this interim final rule, then- will perform the particular procedure or facility. SAPO have been authorized in current paragraph (b) contained a long provide the treatment in paragraph (c). the majority of states over the last compound sentence discussing the We amend the definition of decade to ensure that a patient’s requirement that a patient must have ‘‘practitioner’’ to include other health portable orders are easily recognizable, decision-making capacity to give care professionals whose scope of understood, and respected by informed consent and that informed practice agreement or other formal emergency medical service providers consent is to be obtained from a delineation of job responsibility and receiving health care facilities. surrogate if the patient lacks decision- specifically permits them to obtain Examples of SAPO forms include: making capacity. We separate these into informed consent, and who are Oregon’s Physician Orders for Life- paragraphs (b)(1) and (2) for ease of appropriately trained and authorized to Sustaining Treatment (POLST); West understanding. Paragraph (b) formerly perform the procedure or to provide the Virginia’s Physician Orders for Scope of referred to actions that can be taken by treatment for which consent is being Treatment (POST); New York’s Medical either the patient or surrogate. For obtained. This change is consistent with Orders for Life Sustaining Treatment purposes of clarity and to enhance the team concept for delivery of health (MOLST); and out-of-hospital DNAR readability, we amend these references care currently adopted by VA. The orders (e.g., New York State’s Out-of- to refer to only the patient. Paragraph rationale for this change is discussed in Hospital Do Not Resuscitate (DNR) order (b)(2) specifically states that in the event greater detail below, where we make form). the patient lacks decision-making changes to the general requirements for The term ‘‘surrogate’’ was previously capacity, the requirements of § 17.32 are informed consent in former paragraph defined to mean an individual, applicable to consent for treatments or (c). organization or other body authorized procedures obtained from the surrogate. We add a definition of ‘‘State- under § 17.32 to give informed consent Paragraph (b) also stated that a authorized portable orders.’’ State- on behalf of a patient who lacks practitioner may provide necessary authorized portable orders (SAPO) are a decision-making capacity. We amend medical care in emergency situations specialized form or identifier (e.g., Do this definition to state that the term without the express consent of the Not Attempt Resuscitation (DNAR) ‘‘surrogate’’ is an individual authorized patient or surrogate when immediate bracelets or necklaces) authorized by under this section to make health care medical care is necessary to preserve state law or a state medical board or decisions on behalf of a patient who life or prevent serious impairment of the association, that translates a patient’s lacks decision-making capacity and health of the patient, the patient is preferences concerning specific life- includes a health care agent, legal unable to consent, and the practitioner sustaining treatment decisions into guardian, next-of-kin, or close friend. determines that the patient has no portable medical orders. While SAPO This change is consistent with the surrogate or waiting to obtain consent of and advance directives each reflect categories of individuals identified in the surrogate would increase the hazard patient goals and preferences for earlier VA regulation (§ 17.32(e)(1)-(4)) to life or health of the patient. We move treatment, the two instruments differ. and hence with longstanding practice this to new paragraph (c)(7). An advance directive is a legal regarding whom VA recognizes as being General Requirements for Informed instrument completed by a patient with authorized to make health care Consent decision-making capacity in which the decisions on behalf of a patient who patient expresses his or her preferences lacks decision-making capacity. Former paragraph (c) delineated the about future health care decisions in the general requirements for informed event that the patient becomes unable to Informed Consent consent. The first sentence of this make these decisions. In some types of Former paragraph (b) addressed the paragraph provided a definition of advance directives, the patient may concept of informed consent for informed consent that we believe is both appoint an individual to serve as the treatments and procedures as unclear and not entirely consistent with patient’s health care agent charged with interpreted in VA, while paragraph (c) current VA practice. We amend this making health care decisions on the addressed the requirements for sentence to state that informed consent patient’s behalf, when the patient can obtaining informed consent. Laypersons is the process by which a practitioner no longer make such decisions. SAPO, generally think of informed consent in discloses to and discusses appropriate on the other hand, translate a patient’s the context of a patient agreeing to a information with a patient so that the preferences with regard to specific life- medical procedure or course of patient may make an informed, sustaining treatment decisions into treatment. However, the concept of voluntary choice about whether to

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accept the proposed diagnostic or former regulatory language requires that the nature of a proposed procedure or therapeutic procedure or course of informed consent be obtained by either treatment; the expected benefits; treatment. While the earlier iteration of the primary care physician or the reasonably foreseeable associated risks, the opening sentence of paragraph (c) registered nurse or technician, neither of complications or side effects; reasonable focused on the act of providing consent, whom would be in the best position to and available alternatives; and the revised language focuses on the communicate with the patient about the anticipated results if nothing is done. process and the required actions of the risks and benefits of, and alternatives to, Accordingly, VA amends the rule to practitioner in providing appropriate the recommended procedure or more clearly describe VA’s standard for information so that the patient can make treatment. adequate information disclosure by an informed, voluntary choice. Further, former paragraph (c) is based defining the term ‘‘appropriate Medical practice evolves over time. on an outdated model of health care in information’’ in paragraph (c) as VA believes that former § 17.32 is now which a single practitioner works in information that a reasonable person in inconsistent with contemporary isolation from others. Health care is now the patient’s situation would expect to standards for health care delivery and typically delivered by teams in which receive in order to make an informed current VA practice. Paragraph (c) professionals from a variety of clinical choice about whether or not to undergo previously stated, in relevant part: ‘‘The disciplines work together to achieve the the treatment or procedure. The term practitioner, who has primary patient’s health care goals. These ‘‘appropriate information’’ also includes responsibility for the patient or who interdisciplinary, inter-professional tests that yield information that is teams may include a range of medical will perform the particular procedure or extremely sensitive or that may have a specialists, such as physicians, nurses, provide the treatment, must explain in high risk of significant consequence pharmacists, nutritionists, dieticians, language understandable to the patient (e.g., physical, social, psychological, social workers, behavioral and mental or surrogate the nature of a proposed legal, or economic) that a reasonable health providers, and physician procedure or treatment; the expected person would want to know and assistants. consider as part of his or her consent benefits; reasonably foreseeable Within VA, care delivery has associated risks, complications or side decision. In these cases, the health transitioned to the team-based care record must specifically document that effects; reasonable and available model. Under this model, VA uses a the patient or surrogate consented to the alternatives; and anticipated results if Patient-Aligned Care Team (PACT) specific test. nothing is done.’’ We believe that the approach in which the primary care Paragraph (c)(1) addresses the setting language ‘‘who has primary practitioner is responsible for in which the informed consent responsibility for the patient or who overseeing but not necessarily directly discussion should take place. We state will perform the particular procedure or providing all of the patient’s primary that the informed consent discussion provide the treatment’’ is outdated and health care. Thus, the components of should be conducted in person with the does not reflect the requirements of the patient visit that to do not require patient whenever practical. However, modern clinical practice. For example, the primary care practitioner’s expertise other forms of communication may also medical residents (post-graduate are assigned to other qualified clinical be appropriate depending on the trainees) frequently order blood testing or support staff so that every member circumstances. Former paragraph (c) did for human immunodeficiency virus can ‘‘work to the top of his or her not reflect new modalities that facilitate (HIV), which requires the patient’s competence.’’ Department of Veterans communication between practitioners informed consent. It would therefore be Affairs, Report of the Universal Services and patients or their surrogates. The appropriate for consent to HIV testing to Task Force, April 2009, p. 28. VA widespread adoption of technology that be obtained by residents. However, the believes the changes to the definition of allows for video conferencing and web- old regulatory language does not clearly practitioner will provide sufficient based communications now makes it support this practice because residents flexibility to allow VA to respond in a possible for the informed consent do not ever have ‘‘primary timely manner to current and future process to be conducted in a way that responsibility for the patient’’ in that changes in the scope of practice for is more convenient and flexible for they function under the supervision of appropriately trained team-based health patients. The informed consent process a more senior physician, nor would they care professionals. may reasonably take place over a period typically ‘‘perform the particular To make the language in § 17.32 of time and involve educational procedure,’’ since blood tests are consistent with contemporary standards activities and a number of discussions typically performed by phlebotomists of team-based health care delivery, about the risks and benefits, as well as who draw the blood, along with lab including those set by external alternatives to a proposed treatment or technicians who perform the test. As organizations such as The Joint procedure. To ensure that the regulation another example, a patient’s primary Commission and the Centers for allows the flexibility enabled by these care physician might send a patient to Medicare & Medicaid Services, VA communication modalities, we amend a consulting physician who, in turn, deletes the portion of paragraph (c) that paragraph (c)(1) to permit the informed might send the patient for a specialized reads ‘‘. . . who has primary consent discussion to be conducted treatment or procedure (e.g., a cardiac responsibility for the patient or who either in person, by telephone, through stress test). A different health care will perform the particular procedure or video conference, or by other VA- professional, such as a registered nurse provide the treatment . . .’’ and makes approved electronic communication or a trained technician, might minor edits throughout § 17.32 to allow methods when it is impractical to administer the treatment or procedure. for the fact that components of the conduct the discussion in person, or if Under these circumstances it is patient’s care are appropriately shared preferred by the patient or surrogate. appropriate for informed consent to be by multiple members of a team. Paragraphs (c)(2) through (4) address obtained by the consulting physician Former § 17.32 did not specify a steps that must be taken by the who referred the patient for the standard for the adequacy of practitioner during the informed specialized treatment or procedure, information disclosure and could consent discussion. Paragraph (c)(2) because this individual would be most therefore be interpreted to obligate VA states that the practitioner must explain knowledgeable about it. However, the to disclose all known information about in language understandable to the

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patient each of the following, as receives. However, this is impractical changes (related to documentation) are appropriate to the treatment or and inconsistent with modern standards consistent with longstanding VA policy procedure in question: the nature of the for health care delivery. The type of and practice. The documentation proposed treatment or procedure; documentation required should depend requirement for consent to a treatment expected benefits; reasonably on the level of risk for the particular or procedure requiring signature foreseeable associated risks; treatment or procedure. For instance, consent is addressed in paragraph (d)(3). complications or side effects; reasonable while most, if not all, health care Due to a drafting error, former and available alternatives; and organizations require specific paragraph (d)(2) combines a discussion anticipated results if nothing is done. documentation of informed consent for of how to document signature consent The language in paragraph (c) is major procedures such as surgery or when the patient or surrogate has a substantively the same as in former radiation therapy, we are aware of no significant physical impairment and/or paragraph (c), and in fact, the language organization in the country that requires difficulty in executing a signature due to in paragraphs (c)(2), (3) and (4) is specific documentation of informed an underlying health condition or is essentially the same as in former consent for oxygen administration, unable to read and write, and the 60-day paragraph (c). The only difference is blood pressure measurement, validity period for signature consent. that we remove references here to the electrocardiograms, and other Due to a missing line break, the surrogate, as obtaining informed consent treatments and procedures that are low numbering in the paragraph could be from the surrogate is addressed in risk and within broadly-accepted misinterpreted to mean that the paragraph (e). standards of medical practice. The new requirement of ‘‘valid for a period of 60 Paragraph (c)(5) states that the patient language in this interim final rule calendar-days’’ applies only if a patient may withhold or revoke consent at any therefore differentiates between signs the consent for with an ‘‘X.’’ We time, which is consistent with legal and documentation requirements for patient move the former to paragraph (d)(3)(i) ethical standards, and with paragraph consent to treatments and procedures with revisions as noted below. We move (b), described above, which says VA that are low risk and within broadly- the latter to paragraph (d)(3)(ii), with patients have the right to refuse medical accepted standards of medical practice amendments. Former paragraph (d)(3) is treatment. Consistent with the team- and those that require signature consent redesignated paragraph (d)(3)(iii), with based care model, paragraph (c)(6) because they pertain to treatments and changes as discussed below. provides that the practitioner may procedures that require anesthesia or Paragraph (d)(3)(i) focuses on how delegate to other trained personnel narcotic analgesia, are considered to signature consent is to be documented responsibility for providing the clinical produce significant discomfort to the when physical impairment prevents the information needed for the patient to patient, have a significant risk of execution of a signature on a VA- authorized consent form. As noted make a fully informed consent decision. complication or morbidity, or require above, we move this content from However, the practitioner must injections of any substance into a joint former paragraph (d)(2). Paragraph (d)(2) personally verify with the patient that space or body cavity. Paragraph (d)(1) stated that a patient or surrogate will the patient has been appropriately provides that, for purposes of treatments sign with an ‘‘X’’ when the patient or informed and voluntarily consents to and procedures that are low risk and surrogate has a debilitating illness or the treatment or procedure. We believe within broadly-accepted standards of disability; that is, a significant physical this requirement benefits both the medical practice, a progress note impairment and/or difficulty in patient and practitioner, providing the describing the clinical encounter and patient an opportunity to freely executing a signature due to an the treatment plan suffices to document communicate with the practitioner and underlying health condition(s) or is that informed consent was obtained. For other team members regarding the unable to read and write. The placing of tests that provide information that is proposed treatment or procedure, and the ‘‘X’’ on the form must be witnessed extremely sensitive or that may have a allowing the practitioner to confirm that by two adults. That earlier version of the high risk of significant consequences appropriate information was provided regulation referred to actions that can be (e.g., physical, social, psychological, to the patient and that consent is taken by either the patient or surrogate. legal or economic) that the patient might voluntary. We remove the clause ‘‘and/or difficulty As described above, paragraph (c)(7) reasonably want to consider as part of in executing a signature due to an states that express consent is not their consent decision, the health record underlying health condition(s)’’ because required when immediate medical care must specifically document that the we believe this is redundant, and the is necessary to preserve life or prevent patient or surrogate consented to the concept is adequately covered by the serious impairment of the health of the specific test. phrase ‘‘physical impairment.’’ patient, the patient is unable to consent, The type of informed consent Likewise, we remove the clause ‘‘or is and the patient has no surrogate or documentation required for a treatment unable to read and write’’ because an waiting to obtain consent of the or procedure is dependent on the level individual unable to read or write, but surrogate would increase the hazard to of risk for such procedure. Patient otherwise not physically impaired, may life or health of the patient. consent to treatments or procedures still be able to place some type of mark requiring signature consent, as on the document that would serve the Documentation of Informed Consent discussed above, must be documented purpose of a signature, and VA believes Paragraph (d) focuses on on a form prescribed by VA for that it is burdensome to require the signature documentation of informed consent. As purpose that is signed by both the of two witnesses to the ‘‘X’’ mark. noted in paragraph (d), the informed patient and practitioner, except as Former paragraph (d)(2) further stated consent process must be appropriately described in paragraph (d)(3). Paragraph that by signing, the witnesses are documented in the health record. (d)(2) lists the types of diagnostic and attesting only to the fact that they saw Content in former paragraph (d) could therapeutic treatments that continue to the patient or surrogate and the be interpreted to mean that VA require signature consent. The content practitioner sign the form. The signed practitioners must specifically of paragraph (d)(2) is the same as that form is then filed in the patient’s document informed consent for every found in former paragraph (d)(1), with medical record. We remove the treatment or procedure a patient minor non-substantive edits. These requirement that the witnesses attest

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that they also saw the practitioner sign revised language in the interim final conversation conducted by telephone or the form, as this is inconsistent with rule permits that process to be video conference to be audiotaped, current VA practice and unnecessary. conducted with the use of current and videotaped, or witnessed by a second The overall purpose of the witness anticipated communication modalities VA employee. In addition, it specifies requirement is to confirm the validity of when the patient (or surrogate) and the that the practitioner must document the the patient’s or surrogate’s ‘‘X’’ mark on practitioner are not able to meet in details of the conversation in the the form. This is accomplished by the person prior to a treatment or medical record. If someone other than witnesses documenting they witnessed procedure. Paragraph (d)(3)(iii) permits the patient is giving consent, the name the act of signing by the patient or the signed informed consent form to be of the person giving consent and the surrogate. transmitted to VA not only by mail or authority of that person to act as Further, to allow greater flexibility to facsimile but also by secure electronic surrogate must be adequately identified meet the needs of those with physical mail or other VA-approved modalities. in the medical record. These actions, impairments, we allow either the It then requires that the form be scanned together, suffice to obviate the need for placement of the ‘‘X’’ or the use of a into the record. This provision does not a signed consent form. thumbprint or stamp to meet the specify which modalities are VA- Obtaining Consent for Patients Who signature requirement in these cases. approved for this purpose, because VA Lack Decision-Making Capacity Finally, we state that a third party may believes this is better placed in policy also be designated to assist either the which can more easily be amended to Former paragraph (e) addressed patient or the surrogate if physical reflect evolving forms of surrogate consent while paragraph (f) impairment prevents signature by communications technology. dealt with consent for patients without either. VA believes that obtaining Former § 17.32(d)(3) provided, in part, a surrogate. We combine former signature consent is better facilitated if that a facsimile copy of a signed consent paragraphs (e) and (f) into a single any third party, acting at the direction form is adequate to proceed with paragraph (e). This change places into and in the presence of the patient or treatment, and also required the one paragraph how consent is to be surrogate, performs this task. surrogate to agree to submit a signed obtained when a patient has been Paragraph (d)(3)(ii) consists of that consent form to the practitioner. determined to lack decision-making portion of former paragraph (d)(2) Requiring both the facsimile copy and capacity. Paragraph (e)(1) explains when relating to the 60-day validity period of the hard copy is redundant and consent is to be obtained from a a properly executed VA-authorized potentially confusing. We therefore surrogate decision maker and identifies consent form. Former paragraph (d)(2) delete the language in former paragraph who may serve as a surrogate decision stated that if there is a change in the (d)(3) requiring that, when a signed maker in order of priority. Paragraph patient’s condition that might alter the consent form is transmitted by (e)(2) addresses the process for diagnostic or therapeutic decision, the facsimile, ‘‘the surrogate must agree to obtaining consent for a patient lacking consent is automatically rescinded. We submit a signed consent form to the decision-making capacity who has no amend that sentence by removing the practitioner.’’ We also add to paragraph such surrogate. We redesignate former phrase ‘‘consent is automatically (d)(3)(iii) a requirement that a signed paragraph (e) as paragraph (e)(1). rescinded’’ and instead state that the consent form submitted by mail, Paragraph (e)(1) states that patients who practitioner must initiate a new facsimile, by secure electronic mail, or are incapable of giving consent as a informed consent process, and, if other VA-approved modalities be matter of law will be deemed to lack needed, complete a new signature scanned into the record. This obviates decision-making capacity for the consent form with the patient. We the need for VA to keep a hard copy. We purposes of this section. We delete the believe this will, consistent with current also delete the specific reference to clause in former paragraph (e) VA practice, ensure that the practitioner consent being obtained by telephone. specifying that these patients are either will further engage the patient in a We believe the other language in this persons judicially declared to be discussion of treatment options paragraph establishing the conditions incompetent or minors who are whenever there is a change in clinical for use of the telephone in lieu of a otherwise incapable of giving consent. circumstances that might alter the signed consent form is sufficient. We believe this language is redundant, diagnostic or therapeutic decision about As briefly alluded to above, we add since we already state in paragraph upcoming or continuing treatment. the phrase ‘‘following the informed (e)(1) that patients who are incapable of Paragraphs (d)(3)(iii) and (iv) address consent discussion’’ to paragraph giving consent as a matter of law will be those instances in which signature (d)(3)(iii)’s treatment of circumstances deemed to lack decision-making consent is required, but it is not where signature consent cannot be capacity for purposes of § 17.32. practicable to obtain the signature in obtained in person. This language Consistent with former paragraph (e), person following the informed consent clarifies that a signed consent form paragraph (e)(1)(i) identifies the persons discussion. Former paragraph (d)(3) submitted by mail, facsimile, authorized to act as a surrogate to allowed for surrogates (who might not transmitted by secure electronic mail, or consent on behalf of a patient who lacks be available in person) to give signature other VA-approved modalities is not by decision-making capacity and the order consent over the telephone and/or by itself sufficient to satisfy the consent of priority for surrogates. The language mail or facsimile, but it does not give requirement; rather, an informed in the interim final rule is unchanged this option to patients who may benefit consent discussion is a prerequisite to from former paragraph (e) except we from the same flexibility. For instance, the validity of any signed informed remove ‘‘special guardian’’ from the list. patients may have limited mobility or consent form. Because ‘‘special’’ guardians are live far from the VA facility, which in Receiving signed consent forms by appointed as an outcome of a legal either case makes them unable to travel mail, facsimile, secure electronic mail, process, they are also ‘‘legal guardians.’’ to the facility until shortly before the or other VA-approved modalities may Including ‘‘special guardian’’ as a scheduled treatment or procedure. To still, in some cases, cause undue delay. separate category of surrogate, however, ensure that patients as well as To provide VA, patients, and surrogates suggests that there could be a special surrogates can conveniently participate further flexibility, paragraph (d)(3)(iv) guardian who is not a legal guardian. To in the informed consent process, the permits the informed consent avoid this confusion, we remove the

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designation of ‘‘special guardian.’’ slight modification of language in orders should be the basis for any While this is the only change to this former paragraph (e) describing the patient’s VA treatment plan. content and is only technical in nature, surrogate’s role in the consent process. Special Consent Situation VA takes this opportunity to invite Former paragraph (e) states: ‘‘the public comment on whether VA should surrogate’s decision must be based on Former paragraph (g) addressed consider inclusion of emancipated his or her knowledge of what the patient special consent situations where the minors among those listed as next-of-kin would have wanted, i.e., substituted patient is granted special additional or with respect to any situations that judgment.’’ The next sentence states: ‘‘if procedural due process protections. We might arise with respect to an unknown, the surrogate’s decision must redesignate this paragraph as paragraph emancipated minor (e.g., a spouse who be based on the patient’s best interest.’’ (f). The three ‘‘special consent is an emancipated minor under the age In paragraph (e)(1)(ii), we retain these situations’’ specifically addressed in of 18). Currently, next-of-kin must be 18 requirements but combine the two former paragraph (g) are unusual or years of age or older. In addition, we sentences into one. extremely hazardous treatments or note that VA makes no change to the Former paragraph (f)(1) explained the procedures (e.g., those that may result in order of hierarchy of surrogates. As is process for obtaining consent for a irreversible brain damage or currently the case, a health care agent patient who lacks decision-making sterilization), administration of has, and would retain here, highest capacity where no surrogate is available. psychotropic medication to an priority because this is the individual Former paragraph (f)(1) provided that involuntarily committed patient against selected by the patient himself/herself the practitioner may request Regional his or her will, and proposed and so best reflects the patient’s wishes. Counsel assistance to obtain a special procedures or courses of treatment Needed checks on the actions of a guardian for health care or follow the related to approved medical research. surrogate already exist in current internal procedures in that paragraph. We delete the provisions in former regulation: A surrogate must make Former paragraph (f)(1) is redesignated paragraph (g)(1) relating to unusual or treatment decisions based on the known as paragraph (e)(2)(i). The content extremely hazardous treatments or wishes of the patient, or in the absence remains the same with the two procedures. This paragraph was thereof, based on the best interests of following exceptions: (1) The reference intended to provide enhanced the patient. This standard would still in former paragraph (f)(1) to ‘‘Regional protection against now archaic practices apply and is addressed below, with Counsel’’ is changed in paragraph of forced sterilization and lobotomy, respect to new paragraph (e)(1)(ii). (e)(2)(i) to ‘‘District Chief Counsel’’ to neither of which are performed by VA. reflect a change in title; and (2) the As VA no longer performs the types of As noted, paragraph (e)(1)(i) identifies reference therein to a ‘‘special guardian treatments or procedures contemplated the persons authorized to act as a for health care’’ is amended to refer to in this paragraph, we believe continuing surrogate to consent on behalf of a ‘‘legal guardian’’ for the reasons to include it in our informed consent patient who lacks decision-making previously stated. rule is unnecessary and potentially capacity and the order of priority for Former paragraph (f)(2) allowed misleading to the public. VA believes surrogates. A patient with decision practitioners to use a multi-disciplinary that the existing informed consent making capacity may select a surrogate committee process for patients who lack processes and procedures adequately and document that selection by decision-making capacity and have no protect patients undergoing other types designating a health care agent, and an surrogates, but it is very detailed and of procedures that carry significant risk. alternate if desired, in an advance lengthy. We retain that content but Former paragraph (g)(2) is directive. VA practitioners engage bifurcate it for the sake of clarity. redesignated as paragraph (f)(1). In patients in a discussion of the option of Paragraph (e)(2)(ii)(A) focuses on paragraph (f)(1), we state that in completing an advance directive and treatments and procedures that involve involuntary commitment cases where appointing a health care agent during minimal risk, while paragraph the forced administration of goals of care conversations which occur (e)(2)(ii)(B) addresses treatments and medications is against the patient’s will as part of VA’s delivery of quality health procedures that require signature or the surrogate’s non-consent, care to eligible veterans. In this way, consent. The content of paragraphs procedural protections identified potential disputes and associated (e)(2)(ii)(A) and (B) is substantively the therein must be provided. These uncertainty can be avoided regarding same as former paragraph (f), with one protections were already set forth who the patient prefers to make health exception. In paragraph (e)(2)(ii)(B) we together in former § 17.32(g)(2), care decisions in the event of loss of now state that if the patient has valid although here we set the elements out capacity by having already standing orders regarding life-sustaining in separate paragraphs (f)(1)(i)–(iii) for memorialized that decision in an treatment, such as State Authorized ease of reading. advance directive. We further note that Portable Orders, review by a multi- Former paragraph (g)(3), relating to if a patient with decision-making disciplinary committee appointed by the need for informed consent for a capacity has a change of mind regarding the facility Director is not required for proposed course of treatment or appointment of a health care agent, the a decision to withhold or withdraw life- procedure that is part of approved patient may revoke the advance sustaining treatment. For such patients, medical research, is redesignated as directive and designate another the requirement to request the paragraph (f)(2). We also make non- individual in a new advance directive. assistance of District Chief Counsel in substantive changes to the language to See discussion below of paragraph (g)(4) obtaining a legal guardian for health enhance clarity and readability. which addresses revocation of an care or to initiate the multi-disciplinary advance directive. If the patient chooses process is effectively superseded. This Advance Directives to not appoint a health care agent and approach is consistent with VA’s Former paragraph (h) is titled subsequently loses decision making commitment to promoting patient- ‘‘Advance health care planning’’ and capacity, VA identifies a surrogate centered care and ensuring that addresses issues related to the VA decision maker utilizing the priority list veterans’ values, goals, and treatment Advance Directive. This includes found in paragraph (e)(1)(i). We add preferences are respected and reflected general principles, patient signature and new paragraph (e)(1)(ii) to consist of a in the care they receive. Valid standing witness requirements, revocation, and

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instructions given by a patient in critical with applicable Federal law, policy, or no evidence that the restrictions fulfill situations. We make several changes to generally accepted standards of medical these purposes. Rather, they make it this paragraph. We redesignate this practice. This is intended to help difficult for patients, especially those paragraph as paragraph (g) and revise underscore that VA is a Federal health who are socially isolated or homeless, to the paragraph header to ‘‘Advance care system with its own rules complete an advance directive. In directives.’’ We also make non- governing valid advance directives. addition, the witnesses to an advance substantive changes to this paragraph Without this clarification, paragraph (g) directive play no substantive role; they for the purpose of clarity and could be misinterpreted to mean that are attesting only to the fact that they substantive changes as noted in the VA practitioners must, in honoring a saw the patient sign the form. Given that following discussion. patient’s state-authorized advance many clinicians play a substantial role The introductory text to former directive, comply with that state’s in guiding the care of veterans, the paragraph (h) is redesignated as standards and procedures. Such an literature does not support disqualifying paragraph (g)(1). Paragraph (h) interpretation could be inconsistent them from serving as witnesses; that is, previously stated that VA will follow with the Supremacy Clause of the U.S. performing this non-substantive the wishes of a patient expressed in an Constitution. U.S. Const. art. VI, cl 2. attestation. advance directive when the attending Former paragraph (h)(1) addresses For the same reasons, it is illogical to physician determines and documents in signature and witness requirements for allow social workers and psychologists the patient’s health record that the a VA Advance Directive. We redesignate involved in the patient’s care to serve as patient lacks decision-making capacity this as paragraph (g)(2). A VA Advance witnesses but prohibit nurses and and is not expected to regain it. In Directive must be signed by the patient physicians from serving as witnesses if redesignated paragraph (g)(1), we in the presence of two witnesses. This they are available to do so. modify that language by inserting remains VA practice. Finally, in addition to creating a ‘‘within a reasonable period of time’’ As stated, former § 17.32(h)(1) barrier to completion of advance after ‘‘regain it’’. VA believes the former requires the patient to sign the form. It directives, witness restrictions can have language could be misinterpreted to does not, however, provide an the harmful consequence of providing mean that the practitioner should not alternative means for signing if a narrow technical grounds for family rely on an advance directive unless the physical impairment prevents the members, who do not agree with a patient is never expected to regain patient from signing the VA Advance patient’s stated substantive treatment decision-making capacity. The amended Directive. We remedy this by using the wishes, to challenge the validity of the language addresses that potential same approach used in paragraph patient’s directive (in toto). Such misperception. We also add (d)(3)(i), related to signature consent challenges undermine a patient’s use of introductory language to redesignated forms. Specifically, in paragraph (g)(2) an advance directive as an exercise of paragraph (g)(1) to reflect that a patient’s we allow such a patient to provide the patient’s personal autonomy. Thus, wishes are to be followed to the extent signature consent by placing an ‘‘X’’, VA believes that our patients are best they are consistent with applicable thumbprint, or stamp on the form. In served by removing restrictions on Federal law, VA policy, and generally addition, we permit a patient to which VA employees may serve as accepted standards of medical practice. designate a third party to sign the witnesses under this section. This reflects current practice, but its directive at the direction of the patient Former paragraphs (h)(2) through (4) codification serves to provide public and in the presence of the patient. are redesignated as paragraphs (g)(3) notice of these practice limitations. Under the old rule, neither witness through (5), respectively. The content The introductory information in may to the witness’ knowledge be related to instructions in critical former paragraph (h) provided that an named in the patient’s will, appointed situations essentially remain the same advance directive that is valid in one or as health care agent in the advance but for the changes reflected herein. In more States under applicable State law directive, or financially responsible for paragraph (g)(3), VA’s goal is to honor will be recognized throughout the VA the patient’s care. We now add language the unambiguous verbal or non-verbal health care system. In redesignated stating that neither witness may be the instructions of a patient with decision- paragraph (g)(1), VA modifies that third party designated by the patient to making capacity in situations when they language slightly for purposes of sign at the patient’s direction and in the are critically ill and their loss of clarification. It provides that valid patient’s presence. decision-making capacity is imminent— advance directives will be recognized Former paragraph (h)(1) indicated that even if those instructions are different throughout the VA health care system, except for specific classes of employees from preferences expressed earlier in an with the exception of any components that are listed in § 17.32, VA clinical advance directive. The existence of a that are inconsistent with applicable employees are not permitted to serve as critical clinical situation does not Federal law, VA policy, or generally witness, with a few stated exceptions: diminish the right of a patient with accepted standards of medical practice. VA employees of the Chaplain Service, decision-making capacity to accept or This clarification is not a change in Psychology Service, and Social Work refuse treatments. practice, as former § 17.32(h)(4) Service may serve as witnesses. We We modify the requirement related to provided that clear instructions in an remove, and do not include in documentation of a patient’s advance directive or instructions in paragraph (g)(2), the prior bar on these instructions in a critical situation by co- critical situations will not be given VA employees serving as witnesses, signature, as co-signature is not a effect if inconsistent with VA policy. based on what the contemporary legal functionality in the electronic health Moreover, the terms of 38 CFR 17.38(b) and ethics literature describes as an record. Under previous rulemaking, the require all VA care to be in accord with unnecessary burden to completion of patient’s instructions in critical generally accepted standards of medical advance directives. Although the situations must be expressed to at least care. So, the language added to the originally-intended purpose of two members of the health care team, introductory information just clarifies restricting who, among staff, may serve the substance of these instructions how, even if an advance directive is as a witness was meant to protect recorded in a progress note in the valid in a state, VA will not honor a patients, as mentioned above, the patient’s health record, and the note co- provision therein that is inconsistent current literature observes that there is signed by at least two members of the

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team who were present and who can adequate information during an obtained supports providing treatment attest to the wishes expressed by the informed consent discussion; (3) use of and evaluation to our many outpatients patient. We now require when a patient procedures and processes by which receiving medical services via provides instructions in critical patients, their surrogates, or VA health telehealth. These patients cannot see situations, expressed to at least two care practitioners may effectively their provider in person under the members of the health care team, the communicate and document informed current public health restrictions. VA substance of the patient’s instructions consent for treatments and procedures needs flexibility in obtaining informed and the names of at least two members through available electronic means; (4) consent through these new modalities. of the health care team to whom they recognition in regulation of State In addition, the need to place COVID– were expressed must be entered in the Authorized Portable Orders; and, (5) 19 inpatients in separate wards and patient’s electronic health record. immediate implementation of changes block certain staff from accessing Former paragraphs (h)(3) and (4) is to the advance care planning process patients in these areas prevents some unchanged and are redesignated as (including amending signature and practitioners and staff from having in- paragraphs (g)(4) and (5). witness requirements for a VA advance person discussions with inpatients. We also update the parenthetical directive) to remove barriers to veterans Flexibility is needed to adjust with a information included at the end of documenting treatment preferences in continually changing delivery of care § 17.32 that is related to information the event of a loss of decision making system during a pandemic. collection requirements to refer to the capacity. Allowing for delegation of some correct Office of Management and Multiple provisions of this interim duties for providing information to Budget (OMB) control number covering final rule directly support VA’s patients related to informed consent information collection related to response to the COVID–19 public health gives VA necessary flexibility to advance care planning. OMB control emergency, and improve our ability to delegate this responsibility in a manner number 2900–0583 expired in 2008, and provide timely quality health care to aligned with the current standards of the currently approved OMB control patients. care and reallocation of resources. number related to this information Changes to the definition of Delineating documentation collection is 2900–0556. ‘‘practitioner’’ allows VA to shift health requirements to informed consent for care resources as needed to meet low risk treatments and procedures Administrative Procedure Act requirements for obtaining informed supports VA contingent/crisis standards The Secretary of Veterans Affairs consent as well as other patient needs. of care by easing documentation finds that there is good cause under the Adding regulatory recognition of SAPOs requirements for these procedures. provisions of 5 U.S.C. 553(b)(B), to supports the health care needs of These changes help VA address the publish this interim final rule without critically ill incoming patients with need for flexibility in how signature prior notice and the opportunity for SAPOs in ensuring that the portable consent for low risk procedures public comment, and under 5 U.S.C. order is recognized and honored by VA. documented. Providing a mechanism for 553(d)(3), to dispense with the delayed This definition assists VA health care obtaining signature consent where the effective date ordinarily prescribed by providers in understanding the patient has a physical impairment the Administrative Procedure Act distinction between SAPOs and supports VA contingent/crisis standards (APA). Advance Directives. VA believes of care because many patients unable to Pursuant to section 553(b)(B) of the recognizing SAPOs will prevent delays sign signatures due to their critical APA, general notice and the opportunity in translating these orders into VA condition. These changes help VA for public comment are not required orders so that they may be of-record and address need for flexibility during with respect to a rulemaking when an complied with. contingent/crisis standards of care and ‘‘agency for good cause finds (and This interim final rule revises scarce resources allocation. Allowing for incorporates the finding and a brief multiple elements of the informed third-party assistance in documentation statement of reasons therefor in the consent process and provides VA with of signature consent provides VA with rules issued) that notice and public flexibility to address the current public necessary flexibility during contingent/ procedure thereon are impracticable, health emergency. In the absence of crisis standards of care and scarce unnecessary, or contrary to the public these revisions, VA cannot adequately resources allocation. This change interest.’’ The Secretary finds that it is respond to COVID–19-related issues removes a needless procedural obstacle impractical to delay issuance of this rule related to informed consent because our that hinders VA’s ability to obtain valid for the purpose of soliciting prior public regulation did not provide for waiver of consent when time is of the essence. comment because there is an immediate certain regulatory requirements. Third-party assistance is needed in and pressing need for VA to respond to Revising the general requirements for many COVID–19 cases where the need the current public health crisis and informed consent supports VA’s for treatment urgent or emergent and the national emergency by ensuring (1) response to COVID–19 under VA patient with decision making capacity is effective use of health care resources as contingent/crisis standards of care unable to physically place an ‘‘X’’ on part of the announced VA contingent/ where the patient needs to have all the the consent form. crisis standards of care, including appropriate information to make an Removing the mandatory rescission identification of which practitioners informed consent decision for both non- provision for informed consent in may be allowed to obtain informed COVID care and COVID care. As an certain situations eliminates consent from patients or surrogates for example, some inpatients receiving care unnecessary evaluative steps where a clinical treatments and procedures and for other conditions need to understand change in condition is de minimis and by providing alternative methods and the risk of getting inpatient care there will not affect outcomes and keeps the modalities for doing so when having the amidst the current emergency such that consent process active and up-to-date. informed consent discussion or it may be difficult to prevent possible Providing for other communication obtaining consent in-person is not transmission of the infection to non- modalities for completing and practicable; (2) use of facilitated infected patients. Changes to documenting the signature consent processes and procedures by which to requirements related to the setting in requirement is necessary under VA provide patients or their surrogates with which informed consent may be contingent/crisis standards of care

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where telehealth being used for many Register, and address them in a Health Care and Living Will, is the VA patients, including those with suspected subsequent Federal Register document recognized legal document that permits COVID–19 as well as other non-COVID announcing a final rule incorporating VA patients to designate a health care patients. Currently, the emergency any changes made in response to the agent and/or specify preferences for compels compliance with social public comments. future health care. The VA Advance distance and separation guidance, The APA also requires a 30-day Directive is invoked if a patient becomes making it impossible to comply with delayed effective date, except for ‘‘(1) a unable to make health care decisions for many current procedures and substantive rule which grants or him or herself. This rulemaking revises requirements. Revising documentation recognizes an exemption or relieves a the information collection only as it requirements where the informed restriction; (2) interpretative rules and relates to restrictions on certain VA consent discussion is not held face to statements of policy; or (3) as otherwise employees serving as witness to a face supports COVID–19 response needs provided by the agency for good cause patient executing VA Form 10–0137. under VA contingent/crisis standards of found and published with the rule.’’ 5 These restrictions are reflected in the care where the phone or/telehealth is U.S.C. 553(d). For the reasons stated form’s instructions. We note that for more practicable for the informed above, the Secretary finds that there is clarity that consent for VA medical consent discussion with patients, also good cause for this interim rule to treatment by the patient or surrogate is including those at home with suspected be effective immediately upon not a collection of information as COVID–19. VA could not waive publication. It is in the public interest defined by the Paperwork Reduction regulatory requirements under the prior for VA to immediately adopt the process Act. rulemaking, which potentially caused changes noted above to provide for Title 38 CFR 17.32(g) contains a disruption and created obstacles to the effective utilization of VA practitioners collection of information under the informed consent process where as it relates to the informed consent Paperwork Reduction Act of 1995. If providers and patients are more and process during this period of increased OMB does not approve the collection or more necessarily geographically demand for health care, to provide of information as requested, VA will separated and unable to meet in person. flexibility to utilize alternative immediately remove the provisions Clarifying that VA cannot honor modalities of communications during containing a collection of information or certain preferences in an advance the COVID–19 National Emergency, and take such other action as is directed by directive supports VA standards of care remove barriers to veterans OMB. in which health care teams must be able documenting treatment preferences in We are also revising the information to act on patient’s advance directive in an advance directive. By relieving these collection, in the case of a close friend real time but still be aware that we do restrictions and barriers, and making designated by VA as a surrogate not enforce provisions inconsistent with necessary processes changes, the decision maker, to require the signed Federal law, VA policy, or generally Secretary finds good cause to exempt written statement for the record that accepted standards of medical practice. this interim final rule from the APA’s describes that person’s relationship to Revising the rule on how a physically delayed effective date requirement. and familiarity with the patient in the incapacitated patient, or a patient definition of a close friend who may Paperwork Reduction Act unable to physically sign because of serve as a surrogate. medical equipment in use, may sign an The Paperwork Reduction Act of 1995 Comments on the revision of the advance directive provides us needed (at 44 U.S.C. 3507) requires that VA collection of information contained in flexibility, especially with respect to use consider the impact of paperwork and this interim final rule should be of a designated third party. Removing other information collection burdens submitted to the Office of Management restrictions on who may serve as imposed on the public. Under 44 U.S.C. and Budget, Attention: Desk Officer for witness to the signing of an advance 3507(a), an agency may not collect or the Department of Veterans Affairs, directive allows us to better serve sponsor the collection of information, Office of Information and Regulatory patients who are in isolation wards or nor may it impose an information Affairs, 727 17th St NW, Washington, areas that are off-limits to non-health collection requirement unless it DC 20503. Comments should indicate care team members. Under the previous displays a currently valid Office of that they are submitted in response to rule precious time was lost trying to Management and Budget (OMB) control ‘‘RIN 2900–AQ97.’’ locate suitable VA employees and then number. See also 5 CFR 1320.8(b)(3)(vi). OMB will take action on the revision they find work arounds whereby the This interim final rule will impose the of the information collection contained remote employee can witness the following revised information collection in this rule between 30 and 60 days after patient signing the form by being in the requirements to an existing information publication of this document in the line of sight but at a safe distance. collection approved by OMB under Federal Register. Therefore, a comment Removing unnecessary OMB Control Number 2900–0556. As to OMB is best assured of having its full documentation requirements related to required by the Paperwork Reduction effect if OMB receives it within 30 days patient instructions given in critical Act of 1995 (at 44 U.S.C. 3507(d)), VA of publication. This does not affect the situations ensures that the patient’s has submitted this rulemaking and the deadline for the public to comment on wishes and instructions can be acted information collection revisions to OMB the interim rule. upon promptly. for approval. Notice of OMB approval The Department considers comments For these reasons, the Secretary has for this information collection will be by the public on proposed collections of concluded that ordinary notice and published in a future Federal Register information in— comment procedures would be both document. • Evaluating whether the proposed impracticable and contrary to the public Information collection under OMB collections of information are necessary interest, and is accordingly issuing this Control number 2900–0556 relates to for the proper performance of the rule as an interim final rule. The collection of information related to functions of the Department, including Secretary will consider and address patients documenting treatment whether the information will have comments that are received within 60 preferences on an approved VA form. practical utility; days after the date that this interim final VA Form 10–0137, VA Advance • Evaluating the accuracy of the rule is published in the Federal Directive: Durable Power of Attorney for Department’s estimate of the burden of

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the proposed collections of information, an agency, third parties or the public of and witnessed the veteran signing the including the validity of the information by or for an agency by advance directive form. Information methodology and assumptions used; means of identical questions posed to, contained in the VA Advance Directive • Enhancing the quality, usefulness, or identical reporting, recordkeeping, or is used routinely in VA to help and clarity of the information to be disclosure requirements imposed on, surrogates and clinicians decide what collected; and ten or more persons, whether such treatments or procedures to provide to • Minimizing the burden of the collection of information is mandatory, patients who have lost decision-making collections of information on those who voluntary, or required to obtain or retain capacity. For close friends designated as are to respond, including through the a benefit. Collection of information a surrogate decision maker, the signed use of appropriate automated, includes any requirement or request for written statement is required to electronic, mechanical, or other persons to obtain, maintain, retain, document the nature of the relationship technological collection techniques or report, or publicly disclose information. and familiarity with the patient. The other forms of information technology, In addition to VA Form 10–0137, the following calculations represent such as permitting electronic information collection would be changes to the information collection submission of responses. expanded to include, in the case of a attributable to documentation required The collection of information close friend designated by VA as a from close friends designated as a contained in 38 CFR 17.32 is described surrogate decision maker, the signed surrogate decision maker. immediately following this paragraph. written statement for the record that Title: Durable Power of Attorney for describes that person’s relationship to Description of likely respondents: Health Care and Living Will, VA and familiarity with the patient in the Veterans who want to use the approved Advance Directive. definition of a close friend who may VA form to document their preferences OMB control number 2900–0556 serve as a surrogate. For purposes of this for future care in the event they lose (amended). analysis we estimate that 300 decision making capacity, and to Summary of collection of information: individuals each year are a close friend identify the appropriate health care OMB Control number 2900–0556 relates as that term is used in § 17.32, are decision maker, and individuals who to collection of information related to designated by VA as a surrogate agree to serve as a surrogate decision patients documenting treatment decision maker, and are therefore maker and qualify under the definition preferences on an approved VA form. required to submit a signed written of close friend. VA Form 10–0137, VA Advance statement for the record that describes Directive: Durable Power of Attorney for Estimated number of respondents per that person’s relationship to and year: 300. Health Care and Living Will, is the VA familiarity with the patient. We estimate recognized legal document that permits that the signed written statement would Estimated frequency of responses per VA patients to designate a health care take 10 minutes to complete. year: One response annually. agent and/or specify preferences for Description of the need for Estimated average burden per future health care. The VA Advance information and proposed use of response: 10 minutes. Directive is invoked if a patient becomes information: The collection of Estimated cost to respondents per unable to make health care decisions for information is necessary to facilitate the year: VA estimates the total cost to all him or herself. Former 38 CFR 17.32 process of advance care planning for respondents to be $1,286 (50 burden stipulates that VA employees of the veterans who elect to complete a VA Chaplain Service, Psychology Service, advance directive to designate a health hours X $25.72 per hour). The Bureau Social Work Service, or nonclinical care agent and/or record their of Labor Statistics gathers information employees (e.g., Medical Administration preferences for future health care. on full-time wage and salary workers. Service, Voluntary Service or Advance directives are legal documents Assuming a forty (40) hour work week, Environmental Management Service) that allow a patient to spell out the mean hourly wage is $25.72 based may serve as witnesses. Other preferences about end-of-life care ahead on the BLS wage code—‘‘00–0000 All individuals employed by your VA of time. Advance directives are utilized Occupations.’’ This information was facility may not sign as witnesses to the to communicate treatment preferences taken from the following website: _ advance directive unless they are your and wishes to family, friends, and https://www.bls.gov/oes/current/oes family members. The interim final rule health care professionals and to avoid nat.htm#00-0000 May 2019. removes restrictions on VA employees confusion later on. The document may Estimated total annual reporting and signing as a witness to execution of a also be used by the veteran to designate recordkeeping burden: 50 hours in VA advance directive. Witness a health care agent to make decisions on FY2020 and 50 hours in FY2021. restrictions are reflected in the behalf of the veteran following loss of instructions found in the most recent decision-making capacity. Completion Regulatory Flexibility Act version of VA Form 10–0137, and those of an advance directive by a VA patient The Secretary hereby certifies that restrictions will be removed from the is entirely voluntary. The decision to this interim rule will not have a form instructions if the interim final complete an advance directive has no significant economic impact on a rule becomes final. We note that bearing on a patient’s right or ability to substantial number of small entities as revisions to the rule regarding removing access VA health care. If a patient they are defined in the Regulatory the restrictions on the types of VA completes an advance directive and the Flexibility Act, 5 U.S.C. 601–612, employees who are authorized to serve completed document is provided to a as a witness to execution of an advance VA practitioner, the information it because it affects only the informed directive impact time that would be contains is used to identify the consent process and use of advance expended by a veteran trying to locate appropriate health care decision maker directives within the VA health care a suitable witness rather than a and to inform decisions about the system. collection of information which is patient’s care. The form is signed by the Therefore, pursuant to 5 U.S.C. defined at 5 CFR 1320.3(c) as the veteran in the presence of two 605(b), the initial and final regulatory obtaining, causing to be obtained, witnesses, and the witnesses must sign flexibility analysis requirements of 5 soliciting, or requiring the disclosure to the form attesting that they were present U.S.C. 603 and 604 do not apply.

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Executive Orders 12866, 13563, and Home Care; 64.024—VA Homeless § 17.32 Informed consent and advance 13771 Providers Grant and Per Diem Program; directives. Executive Orders 12866 and 13563 64.026—Veterans State Adult Day (a) Definitions. The following direct agencies to assess the costs and Health Care; 64.029—Purchase Care definitions are applicable for purposes benefits of available regulatory Program; 64.039—CHAMPVA; 64.040— of this section: Advance directive. A written alternatives and, when regulation is VHA Inpatient Medicine; 64.041—VHA statement by a person who has decision- necessary, to select regulatory Outpatient Specialty Care; 64.042— making capacity regarding preferences approaches that maximize net benefits VHA Inpatient Surgery; 64.043—VHA about future health care decisions if that (including potential economic, Mental Health Residential; 64.044— person becomes unable to make those environmental, public health and safety VHA Home Care; 64.045—VHA Outpatient Ancillary Services; 64.046— decisions, in any of the following: effects, and other advantages; (i) Durable power of attorney for distributive impacts; and equity). VHA Inpatient Psychiatry; 64.047— VHA Primary Care; 64.048—VHA health care. A durable power of attorney Executive Order 13563 (Improving for health care (DPAHC) is a type of Regulation and Regulatory Review) Mental Health clinics; 64.049—VHA Community Living Center; 64.050— advance directive in which an emphasizes the importance of individual designates another person as quantifying both costs and benefits, VHA Diagnostic Care; 64.054—Research and Development. an agent to make health care decisions reducing costs, harmonizing rules, and on the individual’s behalf. promoting flexibility. The Office of List of Subjects in 38 CFR Part 17 (ii) Living will. A living will is a type Information and Regulatory Affairs has of advance directive in which an determined that this rule is a significant Administrative practice and individual documents personal regulatory action under Executive Order procedure, Alcohol abuse, Alcoholism, preferences regarding future treatment 12866. Claims, Day care, Dental health, Drug options. A living will typically includes VA’s impact analysis can be found as abuse, Government contracts, Grant preferences about life-sustaining a supporting document at http:// programs-health, Grant programs- treatment, but it may also include www.regulations.gov, usually within 48 veterans, Health care, Health facilities, preferences about other types of health hours after the rulemaking document is Health professions, Health records, care. published. Additionally, a copy of the Homeless, Medical and Dental schools, (iii) Mental health (or psychiatric) rulemaking and its impact analysis are Medical devices, Medical research, advance directive. A mental health or available on VA’s website at http:// Mental health programs, Nursing psychiatric advance directive is www.va.gov/orpm by following the link homes, Reporting and recordkeeping executed by patients whose future for VA Regulations Published from FY requirements, Travel and transportation decision-making capacity is at risk due 2004 through FYTD. This rule is not expenses, Veterans. to mental illness. In this type of subject to the requirements of E.O. Signing Authority directive, the individual indicates future 13771 because this rule results in no mental health treatment preferences. more than de minimis costs. The Secretary of Veterans Affairs, or (iv) State-authorized advance Unfunded Mandates designee, approved this document and directive. A state-authorized advance The Unfunded Mandates Reform Act authorized the undersigned to sign and directive is a non-VA DPAHC, living of 1995 requires, at 2 U.S.C. 1532, that submit the document to the Office of the will, mental health directive, or other agencies prepare an assessment of Federal Register for publication advance directive document that is anticipated costs and benefits before electronically as an official document of legally recognized by a state. The issuing any rule that may result in the the Department of Veterans Affairs. validity of state-authorized advance expenditure by State, local, and tribal Pamela Powers, Chief of Staff, directives is determined pursuant to governments, in the aggregate, or by the Department of Veterans Affairs, applicable state law. For the purposes of private sector, of $100 million or more approved this document on November this section, ‘‘applicable state law’’ (adjusted annually for inflation) in any 22, 2019, for publication. means the law of the state where the advance directive was signed, the state one year. This interim final rule will not Consuela Benjamin, result in the expenditure of $100 where the patient resided when the Regulation Development Coordinator, Office advance directive was signed, the state million or more by State, local, and of Regulation Policy & Management, Office tribal governments, in the aggregate, or where the patient now resides, or the of the Secretary, Department of Veterans state where the patient is receiving by the private sector. Affairs. treatment. VA will resolve any conflict Congressional Review Act For the reasons set out in the between those state laws regarding the Pursuant to the Congressional Review preamble, VA amends 38 CFR part 17 as validity of the advance directive by Act (5 U.S.C. 801 et seq.), the Office of follows: following the law of the state that gives Information and Regulatory Affairs effect to the wishes expressed by the PART 17—MEDICAL designated this rule as not a major rule, patient in the advance directive. as defined by 5 U.S.C. 804(2). (v) Department of Defense (DoD) ■ 1. The authority citation for part 17 is advance medical directive. A DoD Catalog of Federal Domestic Assistance amended by adding an authority for advance medical directive is executed The Catalog of Federal Domestic § 17.32 in numerical order to read in for members of the armed services or Assistance numbers and titles for the part as follows: military dependents pursuant to 10 programs affected by this document are Authority: 38 U.S.C. 501, and as noted in U.S.C. 1044C. It may include a durable 64.008—Veterans Domiciliary Care; specific sections. power of attorney for health care or a 64.011—Veterans Dental Care; 64.012— Section 17.32 also issued under 38 U.S.C. living will. Federal law exempts such Veterans Prescription Service; 64.013— 7331–7334. advance directives from any Veterans Prosthetic Appliances; requirement of form, substance, * * * * * 64.014—Veterans State Domiciliary formality, or recording that is provided Care; 64.015—Veterans State Nursing ■ 2. Revise § 17.32 to read as follows: for under the laws of an individual

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state. Federal law requires that this type bracelets or necklaces) authorized by The nature of the proposed procedure or of advance directive be given the same state law or a state medical board or treatment; expected benefits; reasonably legal effect as an advance directive association, that translate a patient’s foreseeable associated risks, prepared and executed in accordance preferences with respect to life- complications or side effects; reasonable with the laws of the state concerned. sustaining treatment decisions into and available alternatives; and (vi) VA Advance Directive. A VA standing portable medical orders. anticipated results if nothing is done. Advance Directive is completed on a Surrogate. An individual authorized (3) The patient must be given the form specified by VA. In VA, this form under this section to make health care opportunity to ask questions, to indicate can be used by patients to designate a decisions on behalf of a patient who comprehension of the information health care agent and to document lacks decision-making capacity. The provided, and to grant or withhold treatment preferences, including term includes a health care agent, legal consent freely without coercion. medical care, surgical care, and mental guardian, next-of-kin, or close friend. (4) The practitioner must advise the health care. (b) Informed consent. Patients patient if the proposed treatment is Close friend. Any person eighteen receiving health care from VA have the novel or unorthodox. years or older who has shown care and right to accept or refuse any medical (5) The patient may withhold or concern for the welfare of the patient, treatment or procedure recommended to revoke consent at any time. who is familiar with the patient’s them. Except as otherwise provided in (6) The practitioner may delegate to activities, health, religious beliefs and this section, no medical treatment or other trained personnel responsibility values, and who has presented a signed procedure may be performed without for providing the patient with clinical written statement for the record that the prior, voluntary informed consent of information needed for the patient to describes that person’s relationship to the patient. make a fully informed consent decision and familiarity with the patient. (1) In order to give informed consent, but must personally verify with the Decision-making capacity. The ability the patient must have decision-making patient that the patient has been to understand and appreciate the nature capacity. appropriately informed and voluntarily and consequences of health care (2) In the event that the patient lacks consents to the treatment or procedure. treatment decisions, and the ability to decision-making capacity, the (7) Practitioners may provide formulate a judgment and communicate requirements of this section are necessary medical care in emergency a clear decision concerning health care applicable to consent for treatments or situations without the express consent treatments procedures obtained from a surrogate of the patient when all of the following Health care agent. An individual acting on behalf of the patient. apply: named by the patient in a durable power (c) General requirements for informed (i) Immediate medical care is of attorney for health care (DPAHC) to consent. Informed consent is the process necessary to preserve life or prevent make health care decisions on the by which the practitioner discloses to serious impairment of the health of the patient’s behalf, including decisions and discusses appropriate information patient. regarding the use of life-sustaining with a patient so that the patient may (ii) The patient is unable to consent. treatments, when the patient can no make a voluntary choice about whether (iii) The practitioner determines that longer do so. to accept the proposed diagnostic or the patient has no surrogate or that Legal guardian. A person appointed therapeutic procedure or course of waiting to obtain consent from the by a court of appropriate jurisdiction to treatment. Appropriate information is surrogate would increase the hazard to make decisions, including medical information that a reasonable person in the life or health of the patient. decisions, for an individual who has the patient’s situation would expect to (d) Documentation of informed been judicially determined to be receive in order to make an informed consent. (1) The informed consent incompetent. choice about whether or not to undergo process must be appropriately Practitioner. A practitioner is any the treatment or procedure. documented in the health record. For physician, dentist, or health care (Appropriate information includes tests treatments and procedures that are low professional granted specific clinical that yield information that is extremely risk and within broadly accepted privileges to perform the treatment or sensitive or that may have a high risk of standards of medical practice, a progress procedure. The term practitioner also significant consequence (e.g., physical, note describing the clinical encounter includes: social, psychological, legal, or and the treatment plan are sufficient to (i) Medical and dental residents, economic) that a reasonable person document that informed consent was regardless of whether they have been would want to know and consider as obtained for such treatments or granted specific clinical privileges; and part of his or her consent decision.) The procedures. For tests that provide (ii) Other health care professionals specific information and level of detail information that is extremely sensitive whose scope of practice agreement or required will vary depending on the or that may have a high risk of other formal delineation of job nature of the treatment or procedure. significant consequences (e.g., physical, responsibility specifically permits them (1) The informed consent discussion social, psychological, legal, or to obtain informed consent, and who are should be conducted in person with the economic) that a patient might appropriately trained and authorized to patient whenever practical. If it is reasonably want to consider as part of perform the procedure or to provide the impractical to conduct the discussion in the consent decision, the health record treatment for which consent is being person, or the patient expresses a must specifically document that the obtained. preference for communication through patient or surrogate consented to the Signature consent. The another modality, the discussion may be specific test. documentation of informed consent conducted by telephone, through video (2) The patient’s and practitioner’s with the signature of the patient or conference, or by other VA-approved signature on a form prescribed by VA surrogate and practitioner on a form electronic communication methods. for that purpose is required for all prescribed by VA for that purpose. (2) The practitioner must explain in diagnostic and therapeutic treatments or State-authorized portable orders. language understandable to the patient procedures that meet any of the Specialized forms or identifiers (e.g., Do each of the following, as appropriate to following criteria: Not Attempt Resuscitation (DNAR) the treatment or procedure in question: (i) Require the use of sedation;

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(ii) Require anesthesia or narcotic consent form. The practitioner must to the best of their knowledge. The analgesia; document the details of the attending physician and the Chief of (iii) Are considered to produce conversation in the medical record. If Service (or designee) must indicate their significant discomfort to the patient; someone other than the patient is giving approval of the treatment decision in (iv) Have a significant risk of consent, the name of the person giving writing. Any decision to withhold or complication or morbidity; or consent and the authority of that person withdraw life-sustaining treatment for (v) Require injections of any to act as surrogate must be adequately such patients must be reviewed by a substance into a joint space or body identified in the medical record. multi-disciplinary committee appointed cavity. (e) Patients who lack decision-making by the facility Director, unless the (3) Consent for treatments and capacity—(1) Identifying a surrogate patient has valid standing orders procedures that require signature decision maker. If the practitioner who regarding life-sustaining treatment, such consent must be documented in the has primary responsibility for the as state-authorized portable orders. The health record on a form prescribed by patient determines that the patient lacks committee functions as the patient’s VA for that purpose, or as otherwise decision-making capacity and is advocate and may not include members specified in this paragraph (d). unlikely to regain it within a reasonable of the treatment team. The committee (i) If the patient or surrogate is unable period of time, informed consent must must submit its findings and to execute a signature on the form due be obtained from the surrogate. Patients recommendations in a written report to to a physical impairment, the patient or who are incapable of giving consent as the Chief of Staff who must note his or surrogate may, in lieu of a signature, a matter of law will be deemed to lack her approval of the report in writing. sign the consent form with an ‘‘X’’, decision-making capacity for the The facility Director must be informed thumbprint, or stamp. Two adult purposes of this section. about the case and results of the review witnesses must witness the act of (i) The following persons are and may concur with the decision to signing and sign the consent form. By authorized to act as a surrogate to withhold or withdraw life-sustaining signing, the witnesses are attesting only consent on behalf of a patient who lacks treatment, delegate final decision- to the fact that they saw the patient or decision-making capacity in the making authority to the facility Chief of surrogate sign the form. As an following order of priority: Staff, or request further review by alternative to such a patient or surrogate (A) Health care agent; District Chief Counsel. using a duly witnessed ‘‘X’’, (B) Legal guardian; (f) Special consent situations. (1) In thumbprint, or stamp to sign the form, (C) Next-of-kin: a close relative of the the case of involuntarily committed a designated third party may sign the patient eighteen years of age or older in patients where the forced form if acting at the direction of the the following priority: Spouse, child, administration of psychotropic patient or surrogate and in the presence parent, sibling, grandparent, or medication is against the will of a of the patient or surrogate. The signed grandchild; or patient (or the surrogate does not form must be filed in the patient’s (D) Close friend. consent), the following procedural health record. (ii) A surrogate generally assumes the protections must be provided: (ii) A properly executed VA- same rights and responsibilities as the (i) The patient or surrogate must be authorized consent form is valid for a patient in the informed consent process. allowed to consult with independent period of 60 calendar days. If, however, The surrogate’s decision must be based specialists, legal counsel or other the treatment plan involves multiple on his or her knowledge of what the interested parties concerning the treatments or procedures, it will not be patient would have wanted; that is, treatment with psychotropic necessary to repeat the informed substituted judgment, or, if the patient’s medication. Any recommendation to consent discussion and documentation specific values and wishes are administer or continue medication must so long as the course of treatment unknown, the surrogate’s decision must be reviewed by a multi-disciplinary proceeds as planned, even if treatment be based on the patient’s best interest. committee appointed by the facility extends beyond the 60-day period. If (2) Consent for a patient without a Director for this purpose. there is a change in the patient’s surrogate. (i) If none of the surrogates (ii) The multi-disciplinary committee condition that might alter the diagnostic listed in paragraph (e)(1) of this section must include a psychiatrist or a or therapeutic decision about upcoming is available, a practitioner may either physician who has psychopharmacology or continuing treatment, the practitioner request the assistance of District Chief privileges. The facility Director must must initiate a new informed consent Counsel to obtain a legal guardian for concur with the committee’s process and, if needed, complete a new health care or follow the procedures recommendation to administer signature consent form with the patient. outlined in paragraph (e)(2)(ii) of this psychotropic medications contrary to (iii) When signature consent is section. the patient’s or surrogate’s wishes. required, but it is not practicable to (ii) Facilities may use the following (iii) Continued administration of obtain the signature in person following process to make treatment decisions for psychotropic medication must be the informed consent discussion, a patients who lack decision-making reviewed every 30 days. The patient (or signed VA consent form transmitted by capacity and have no surrogate. a representative on the patient’s behalf) mail, facsimile, in by secure electronic (A) For treatments and procedures may appeal the treatment decision to a mail, or other VA-approved modalities that involve minimal risk, the court of appropriate jurisdiction. and scanned into the record, is adequate practitioner must verify that no (2) The patient must be informed if a to proceed with treatment or procedure. authorized surrogate can be located, or proposed course of treatment or (iv) When signature consent is that the surrogate is not available. The procedure involves approved medical required, but it is not practicable to practitioner must attempt to explain the research in whole or in part. If so, the obtain the signed consent form, the nature and purpose of the proposed patient’s separate informed consent informed consent conversation treatment to the patient and enter this must be obtained for the components conducted by telephone or video information in the health record. that constitute research pursuant to the conference must be audiotaped, (B) For procedures that require informed consent requirements for videotaped, or witnessed by a second signature consent, the practitioner must human-subjects research set forth in VA employee in lieu of the signed certify that the patient has no surrogate part 16 of this title.

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(g) Advance directives—(1) General. non-verbal instructions of the patient DATES: Compliance date: Compliance To the extent consistent with applicable are, in fact, unambiguous, the substance with 47 CFR 27.1412(c) introductory Federal law, VA policy, and generally of the patient’s instructions and the text, (c)(2), 27.1412(d) introductory text accepted standards of medical practice, names of at least two members of the and (d)(1), and 27.1419, published at 85 VA will follow the wishes of a patient health care team to whom they were FR 22804 on April 23, 2020, is required expressed in a valid advance directive expressed must be entered in the on May 27, 2020. when the practitioner determines and patient’s electronic health record. FOR FURTHER INFORMATION CONTACT: documents in the patient’s health record (4) Revocation. A patient who has Anna Gentry, Mobility Division, that the patient lacks decision-making decision-making capacity may revoke an Wireless Telecommunications Bureau, capacity and is unlikely to regain it advance directive or instructions in a at (202) 418–7769 or Anna.Gentry@ within a reasonable period of time. An critical situation at any time by using fcc.gov. advance directive that is valid in one or any means expressing the intent to more states under applicable law, revoke. SUPPLEMENTARY INFORMATION: This including a mental health (or (5) VA policy and disputes. Neither document announces that OMB psychiatric) advance directive, a valid the treatment team nor surrogate may approved the information collection Department of Defense advance medical override a patient’s clear instructions in requirements in §§ 47 CFR 27.1412(c) directive, or a valid VA Advance an advance directive or in instructions introductory text, (c)(2), 27.1412(d) Directive will be recognized throughout given in a critical situation, except that introductory text and (d)(1), and the VA health care system, except for those portions of an advance directive 27.1419, on May 5, 2020. These rules components therein that are or instructions given in a critical were adopted in the 3.7 GHz Report and inconsistent with applicable Federal situation that are not consistent with Order, FCC 20–22, published at law, VA policy, or generally accepted applicable Federal law, VA policy, or published at 85 FR 22804 on April 23, standards of medical practice. generally accepted standards of medical 2020. The Commission publishes this (2) Signing and witness requirements. practice will not be given effect. document as an announcement of the compliance date of these new rules. (i) A VA Advance Directive must be (The information collection OMB approval for all other new or signed by the patient. If the patient is requirements in this section have been unable to sign a VA Advance Directive approved by the Office of Management amended rules for which OMB approval due to a physical impairment, the and Budget under control number 2900– is required will be requested, and patient may sign the advance directive 0556) compliance is not yet required for those form with an ‘‘X’’, thumbprint, or rules. Compliance with all new or [FR Doc. 2020–10264 Filed 5–26–20; 8:45 am] stamp. In the alternative, the patient amended rules adopted in the 3.7 GHz may designate a third party to sign the BILLING CODE 8320–01–P Report and Order that do not require directive at the direction of the patient OMB approval will be required as of and in the presence of the patient. June 22, 2020, see 85 FR 22804 (Apr. 23, (ii) In all cases, a VA Advance FEDERAL COMMUNICATIONS 2020). Directive must be signed by the patient COMMISSION If you have any comments on the in the presence of both witnesses. burden estimates listed below, or how 47 CFR Part 27 Witnesses to the patient’s signing of an the Commission can improve the advance directive are attesting by their [GN Docket No. 18–122; FCC 20–22; FRS collections and reduce any burdens signatures only to the fact that they saw 16735] caused thereby, please contact Cathy the patient or designated third party Williams, Federal Communications sign the VA Advance Directive form. Expanding Flexible Use of the 3.7 to Commission, Room 1–C823, 445 12th Neither witness may, to the witness’ 4.2 GHz Band Street, SW, Washington, DC 20554, knowledge, be named as a beneficiary in AGENCY: Federal Communications regarding OMB Control Number 3060– the patient’s estate, appointed as health Commission. 1272. Please include the OMB Control care agent in the advance directive, or ACTION: Final rule; announcement of Number in your correspondence. The financially responsible for the patient’s compliance date. Commission will also accept your care. Nor may a witness be the comments via email at [email protected]. designated third party who has signed SUMMARY: In this document, the To request materials in accessible the VA Advance Directive form at the Commission announces that the Office formats for people with disabilities direction of the patient and in the of Management and Budget (OMB) has (Braille, large print, electronic files, patient’s presence. approved the information collection audio format), send an email to fcc504@ (3) Instructions in critical situations. requirements associated with the fcc.gov or call the Consumer and In certain situations, a patient with eligible space station operator Governmental Affairs Bureau at (202) decision-making capacity may present accelerated relocation election, eligible 418–0530 (voice), (202) 418–0432 for care when critically ill and loss of space station operator transition plan, (TTY). decision-making capacity is imminent. and incumbent earth station lump sum In such situations, VA will document payment election rules adopted in the Synopsis the patient’s unambiguous verbal or Federal Communications Commission’s As required by the Paperwork non-verbal instructions regarding (Commission) 3.7 GHz Report and Reduction Act of 1995 (44 U.S.C. 3507), preferences for future health care Order, FCC 20–22, and that compliance the Commission is notifying the public decisions. These instructions will be with the new rules is now required. that it received final OMB approval on honored and given effect should the This document is consistent with the May 5, 2020, for the information patient lose decision-making capacity 3.7 GHz Report and Order, FCC 20–22, collection requirements contained in before being able to complete a new which states that the Commission will §§ 47 CFR 27.1412(c) introductory text, advance directive. The patient’s publish a document in the Federal (c)(2), 27.1412(d) introductory text and instructions must have been expressed Register announcing a compliance date (d)(1), and 27.1419. Under 5 CFR part to at least two members of the health for the new rule sections and revise the 1320, an agency may not conduct or care team. To confirm that the verbal or Commission’s rules accordingly. sponsor a collection of information

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unless it displays a current, valid OMB Commission’s rules for such much they may be required to pay for Control Number. No person shall be information. See 47 CFR 0.459. incumbent relocation costs and subject to any penalty for failing to Needs and Uses: On February 28, accelerated relocation payments should comply with a collection of information 2020, in furtherance of the goal of they become overlay licensees, as subject to the Paperwork Reduction Act releasing more mid-band spectrum into overlay licensees are required to pay for that does not display a current, valid the market to support and enable next- the reasonable relocation costs of OMB Control Number. The OMB generation wireless networks, the incumbent space station and incumbent Control Number for the information Federal Communications Commission earth station operators that are required collection requirements in §§ 27.1412(c) (Commission) adopted the 3.7 GHz to clear the lower portion of the band. introductory text, (c)(2), 27.1412(d) Report and Order, FCC 20–22, in which Under this new information introductory text and (d)(1), and it reformed the use of the 3.7–4.2 GHz collection, the Commission will collect 27.1419, is 3060–1272. The foregoing band, also known as the C-Band. The information that will be used by the notice is required by the Paperwork 3.7 GHz-4.2 GHz band currently is Commission to determine when, how, Reduction Act of 1995, Public Law 104– allocated in the United States and at what cost existing operations in 13, October 1, 1995, and 44 U.S.C. 3507. exclusively for non-Federal use on a the lower portion of the 3.7–4.2 GHz The total annual reporting burdens primary basis for Fixed Satellite Service band will be relocated to the upper and costs for the respondents are as (FSS) and Fixed Service. Domestically, portion of the band. Specifically, the follows: space station operators use the 3.7–4.2 Commission collect the following OMB Control Number: 3060–1272. GHz band to provide downlink signals information from incumbents as OMB Approval Date: May 5, 2020. of various bandwidths to licensed adopted in the 3.7 GHz Report and OMB Expiration Date: November 30, transmit-receive, registered receive- Order: only, and unregistered receive-only 2020. Accelerated Relocation Elections Title: 3.7 GHz Band Space Station earth stations throughout the United States. The 3.7 GHz Report and Order The Commission concluded in the 3.7 Operator Accelerated Relocation GHz Report and Order that overlay Elections and Transition Plans; 3.7 GHz calls for the relocation of existing FSS operations in the band into the upper licensees would only value accelerated Band Incumbent Earth Station Lump relocation if a significant majority of Sum Payment Elections. 200 megahertz of the band (4.0–4.2 GHz) and making the lower 280 megahertz incumbents are cleared in a timely Form Number: N/A. (3.7–3.98 GHz) available for flexible-use manner, and therefore determined that Respondents: Business or other for throughout the contiguous United States at least 80% of accelerated relocation profit entities. through a Commission-administered payments must be accepted in order for Number of Respondents and public auction of overlay licenses that is the Commission to accept accelerated Responses: 3,010 respondents; 3,010 scheduled to occur later this year, with elections and require overlay licensees responses. the 20 megahertz from 3.98–4.0 GHz to pay accelerated relocation payments. Estimated Time per Response: 16 reserved as a guard band. The 3.7 GHz Report and Order calls for hours per eligible space station The Commission adopted a robust an eligible space station operator, as accelerated relocation election; 80–600 transition schedule to achieve an defined in the 3.7 GHz Report and hours per eligible space station expeditious relocation of FSS operations Order, that chooses to commit to clear transition plan; 32 hours per incumbent and ensure that a significant amount of on the accelerated schedule in exchange earth station lump sum payment spectrum is made available quickly for for accelerated relocation payments to election. next-generation wireless deployments, submit a written, public, irrevocable Frequency of Response: One-time while also ensuring effective accelerated relocation election with the reporting requirement. accommodation of relocated incumbent Commission by May 29, 2020, to permit Obligation to Respond: Required to users. The 3.7 GHz Report and Order the Commission to determine whether obtain or retain benefits. Statutory establishes a deadline of December 5, there are sufficient accelerated authority for this information collection 2025, for full relocation to ensure that relocation elections to trigger early is contained in sections 1, 2, 4(i), 4(j), all FSS operations are cleared in a relocation and in turn provide bidders 5(c), 201, 302, 303, 304, 307(e), and 309 timely manner, but provides an with adequate certainty regarding the of the Communications Act of 1934, as opportunity for accelerated clearing of clearing date and payment obligations amended, 47 U.S.C. 151, 152, 154(i), the band by allowing incumbent space associated with each license well in 154(j), 155(c), 201, 302, 303, 304, 307(e), station operators, as defined in the 3.7 advance of the auction. 309. GHz Report and Order, to commit to Transition Plans Total Annual Burden: 109,680 hours. voluntarily relocate on a two-phased Total Annual Cost: $900,000. accelerated schedule (with additional The 3.7 GHz Report and Order Privacy Act Impact Assessment: No obligations and incentives for such requires each eligible space station impact(s). operators), with a Phase I deadline of operator to submit to the Commission Nature and Extent of Confidentiality: December 5, 2021, and a Phase II by June 12, 2020, and make available for The information collected under this deadline of December 5, 2023. public review, a detailed transition plan collection will be made publicly The Commission concluded in the 3.7 describing the necessary steps and available, however, to the extent GHz Report and Order that, before the estimated costs for the eligible space information submitted pursuant to this public auction of overlay licenses station operator to complete the information collection is determined to commences, it is appropriate for transition of existing operations in the be confidential, it will be protected by potential bidders to know when they lower portion of the 3.7–4.2 GHz band the Commission. If a respondent seeks will get access to the spectrum in the to the upper 200 megahertz of the band to have information collected pursuant 3.7–3.98 GHz band that is currently and its individual timeline for doing so to this information collection withheld occupied by incumbent FSS space consistent with the regular relocation from public inspection, the respondent station operators and earth stations, as deadline or by the accelerated relocation may request confidential treatment defined in the 3.7 GHz Report and deadlines. An eligible space station pursuant to section 0.459 of the Order, and to have an estimate of how operator that elects to receive

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accelerated relocation payments is DEPARTMENT OF COMMERCE (IFQ) (LAGC A) permit may continue to responsible for relocating all of its fish in the Maine or Massachusetts state associated incumbent earth stations and National Oceanic and Atmospheric waters portion of the NGOM Scallop must outline the details of such Administration Management Area under the State relocation in the transition plan (unless Waters Exemption Program found in an incumbent earth station owner elects 50 CFR Part 648 § 648.54 provided it has a valid Maine to receive a lump sum payment and [Docket No. 200325–0088; RTID 0648– or Massachusetts state scallop permit assumes responsibility for transitioning XX056] and fishes only in that state’s respective its own earth stations). Similarly, an waters. Based on trip declarations by incumbent space station operator that Fisheries of the Northeastern United States; Atlantic Sea Scallop Fishery; federally permitted LAGC scallop does not elect to receive accelerated vessels fishing in the NGOM Scallop relocation payments but nevertheless 2020 Closure of the Northern Gulf of Maine Scallop Management Area to the Management Area and analysis of plans to assume responsibility for Limited Access General Category fishing effort, we project that the 2020 relocating its own associated incumbent Fishery LAGC TAC will be harvested as of May earth stations must make that clear in its 23, 2020. Therefore, in accordance with transition plan. AGENCY: National Marine Fisheries § 648.62(b)(2), the NGOM Scallop Service (NMFS), National Oceanic and Incumbent Earth Station Lump Sum Management Area is closed to all Atmospheric Administration (NOAA), federally permitted LAGC scallop Payment Elections Commerce. vessels as of May 23, 2020. As of this The 3.7 GHz Report and Order ACTION: Temporary rule; closure. date, no vessel issued a Federal LAGC provides an incumbent earth station scallop permit may fish for, possess, or SUMMARY: operator with the option of accepting NMFS announces the closure land scallops in or from the NGOM of the Northern Gulf of Maine Scallop reimbursement payments for its Scallop Management Area after 0001 Management Area for the remainder of reasonable relocation costs for the local time, May 23, 2020, unless the the 2020 fishing year for Limited Access vessel is fishing exclusively in state transition, or opting out of the formal General Category vessels. Regulations waters and is participating in an relocation process and accepting a lump require this action once NMFS projects approved state waters exemption sum reimbursement payment for all of that 100 percent of the Limited Access program as specified in § 648.54. Any its incumbent earth stations based on General Category total allowable catch federally permitted LAGC scallop vessel the average, estimated costs of for the Northern Gulf of Maine Scallop that has declared into the NGOM relocating all of their incumbent earth Management Area will be harvested. Scallop Management Area, complied stations in lieu of actual relocation This action is intended to prevent the with all trip notification and observer costs. The 3.7 GHz Report and Order overharvest of the 2020 total allowable requirements, and crossed the vessel directs the Wireless catch allocated to the Limited Access monitoring system demarcation line on Telecommunications Bureau to General Category Fishery. the way to the area before 0001, May 23, announce the lump sum that will be DATES: Effective 0001 hr local time, May 2020, may complete its trip and land available per incumbent earth station as 23, 2020, through March 31, 2021. scallops. This closure is in effect until the end of the 2020 scallop fishing year, well as the process for electing lump FOR FURTHER INFORMATION CONTACT: through March 31, 2021. This closure sum payments and requires that no later Shannah Jaburek, Fishery Management does not apply to the Limited Access than 30 days after this announcement, Specialist, (978) 282–8456. an incumbent earth station operator that (LA) scallop fleet, which was allocated SUPPLEMENTARY INFORMATION: The reader a separate TAC of 140,000 lb (63,503 kg) wishes to receive a lump sum payment can find regulations governing fishing make an irrevocable lump sum payment for the 2020 fishing year under activity in the Northern Gulf of Maine Framework Adjustment 32 to the election that will apply to all of its earth (NGOM) Scallop Management Area in stations in the contiguous United States. Atlantic Sea Scallop Fishery 50 CFR 648.54 and 648.62. These Management Plan. Vessels that are This information collection will serve regulations authorize vessels issued a participating in the 2020 scallop as the starting point for planning and valid Federal scallop permit to fish in Research Set-Aside Program and have managing the process of efficiently and the NGOM Scallop Management Area been issued letters of authorization to expeditiously clearing of the lower under specific conditions, including a conduct compensation fishing activities portion of the band, so that this total allowable catch (TAC) of 206,282 will harvest the 2020 LA TAC. spectrum can be auctioned for flexible- lb (93,567 kg) for the Limited Access Classification use service licenses. General Category (LAGC) fleet for the 2020 fishing year, and a State Waters This action is required by 50 CFR part Federal Communications Commission. Exemption Program for the State of 648 and is exempt from review under Cecilia Sigmund, Maine and Commonwealth of Executive Order 12866. Federal Register Liaison Officer. Massachusetts. Section 648.62(b)(2) The Assistant Administrator for [FR Doc. 2020–10167 Filed 5–26–20; 8:45 am] requires the NGOM Scallop fisheries, NOAA, finds good cause BILLING CODE 6712–01–P Management Area to be closed to pursuant to 5 U.S.C. 553(b)(B) to waive scallop vessels issued Federal LAGC prior notice and the opportunity for scallop permits, except as provided public comment because it would be below, for the remainder of the fishing contrary to the public interest and year once the NMFS Greater Atlantic impracticable. NMFS also finds, Regional Administrator determines that pursuant to 5 U.S.C. 553(d)(3), good 100 percent of the LAGC TAC for the cause to waive the 30-day delayed fishing year is projected to be harvested. effectiveness period for the reasons Any vessel that holds a Federal NGOM noted below. The NGOM Scallop (LAGC B) or Individual Fishing Quota Management Area opened for the 2020

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fishing year on April 1, 2020. The salmon fisheries. This inseason action Chinook, coho, and halibut catch regulations at § 648.60(b)(2) require this modified the commercial salmon fishery aboard, and the vessel’s destination and closure to ensure that federally in the area from the U.S./Canada border approximate time of delivery. permitted scallop vessels do not harvest to Leadbetter Point, WA. Effective dates: Inseason action #6 more than the allocated LAGC TAC for DATES: This inseason action became took effect on May 6, 2020, and remains the NGOM Scallop Management Area. applicable on 0001 hours Pacific in effect until modified by further NMFS can only make projections for the Daylight Time, May 6, 2020, and inseason action. NGOM closure date as trips into the area remains in effect until superseded or Reason and authorization for the occur on a real-time basis and as activity modified. action: The commercial salmon fishery trends appear. As a result, NMFS can FOR FURTHER INFORMATION CONTACT: north of Leadbetter Point, WA, typically make an accurate projection Peggy Mundy at 206–526–4323. traditionally lands their catch at Neah only shortly before the TAC is SUPPLEMENTARY INFORMATION: Bay, WA, or La Push, WA. Currently, harvested. A rapid harvest rate that has those ports, which are located on the occurred in the last 2 weeks makes it Background reservations of the Makah Tribe and more difficult to project a closure well In the 2020 annual management Quileute Nation, respectively, are closed in advance. To allow federally measures for ocean salmon fisheries (85 to public access out of public health and permitted LAGC scallop vessels to FR 27317, May 8, 2020), NMFS safety concerns. The purpose of continue taking trips in the NGOM announced management measures for inseason action #6 was to provide the Scallop Management Area during the the commercial and recreational commercial salmon fishery access to period necessary to publish and receive fisheries in the area from Cape Falcon, open ports to land and deliver their comments on a proposed rule would OR, to the U.S./Mexico border, effective catch north of Leadbetter Point. The result in vessels harvesting more than from 0001 hours Pacific Daylight Time addition of a telephone reporting the 2020 LAGC TAC for the NGOM (PDT), May 6, 2020, until the effective provision is to monitor catch in the area Scallop Management Area. This would date of the 2021 management measures, in order to manage fishery impacts, result in excessive fishing effort in the as published in the Federal Register. consistent with preseason planning, on area thereby undermining conservation NMFS is authorized to implement Puget Sound Chinook salmon, which objectives of the Atlantic Sea Scallop inseason management actions to modify are listed as threatened under the Fishery Management Plan and requiring fishing seasons and quotas as necessary Endangered Species Act. The NMFS more restrictive future management to provide fishing opportunity while West Coast Regional Administrator (RA) measures to make up for the excessive meeting management objectives for the considered public health and safety harvest. Also, the public had prior affected species (50 CFR 660.409). concerns, port access issues, and the notice and full opportunity to comment Inseason actions in the salmon fishery need to monitor landings in the area, on this closure process when we put the may be taken directly by NMFS (50 CFR and determined that this inseason final NGOM management provisions in 660.409(a)—Fixed inseason action was necessary to meet place for the 2020 fishing year on March management provisions) or upon management and conservation 31, 2020 (85 FR 17754). consultation with the Pacific Fishery objectives while accommodating public Authority: 16 U.S.C. 1801 et seq. Management Council (Council) and the health and safety concerns. Inseason appropriate State Directors (50 CFR modification of landing boundaries is Dated: May 21, 2020. 660.409(b)—Flexible inseason authorized by 50 CFR 660.409(b)(1)(v). He´le`ne M.N. Scalliet, management provisions). The state Consultation date and participants: Acting Director, Office of Sustainable management agencies that participated Consultation on inseason action #6 Fisheries, National Marine Fisheries Service. in the consultation described in this occurred on May 5, 2020. [FR Doc. 2020–11361 Filed 5–22–20; 8:45 am] document were: The Washington Representatives from NMFS, WDFW, BILLING CODE 3510–22–P Department of Fish and Wildlife ODFW, and the Council participated in (WDFW) and the Oregon Department of this consultation. Fish and Wildlife (ODFW). All other restrictions and regulations DEPARTMENT OF COMMERCE Inseason Action remain in effect as announced for the 2020 ocean salmon fisheries (85 FR National Oceanic and Atmospheric Inseason Action #6 Administration 27317, May 8, 2020). Description of the action: Inseason The RA determined that the above 50 CFR Part 660 action #6 made modifications to the inseason action recommended by the landing restrictions for the commercial state of Washington was warranted and [Docket No. 200505–0127; RTID 0648– salmon fishery in the area from the U.S./ based on the best available information, XW028] Canada border to Leadbetter Point, WA. as presented by WDFW, and supported Fisheries Off West Coast States; Prior to this action, vessels fishing or in concerns regarding public health and Modifications of the West Coast possession of salmon north of safety, access to ports, and monitoring Commercial Salmon Fisheries; Leadbetter Point could not land fish east fishery impacts, as described above. The Inseason Action #6 of the Sekiu River, WA. Under this states manage the fisheries in state inseason action, fish cannot be landed waters adjacent to the areas of the U.S. AGENCY: National Marine Fisheries east of Port Angeles, WA (approximately exclusive economic zone consistent Service (NMFS), National Oceanic and 50 miles, or 80 km, east of the Sekiu with these Federal actions. As provided Atmospheric Administration (NOAA), River). Additionally, for delivery to by the inseason notice procedures of 50 Commerce. Washington ports east of the Sekiu CFR 660.411, actual notice of the ACTION: Inseason modification of 2020 River, vessels must notify WDFW at described regulatory action was given, management measures. 360–249–1215 prior to crossing the prior to the time the action was Bonilla-Tatoosh line (Washington effective, by telephone hotline numbers SUMMARY: NMFS announces one Administrative Code 220–300–360) with 206–526–6667 and 800–662–9825, and inseason action in the 2020 ocean the area fished, total number of by U.S. Coast Guard Notice to Mariners

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broadcasts on Channel 16 VHF–FM and FR 27317, May 8, 2020), the Pacific option for landing commercial catch 2182 kHz. Coast Salmon Fishery Management Plan north of Leadbetter Point, WA, due to (FMP), and regulations implementing the closure of the traditional ports, and Classification the FMP under 50 CFR 660.409 and would, therefore, have precluded the NOAA’s Assistant Administrator (AA) 660.411. Prior notice and opportunity ability for the fishery to function as for NMFS finds that good cause exists for public comment was impracticable anticipated preseason. for this notification to be issued without because NMFS had insufficient time to This action is authorized by 50 CFR affording prior notice and opportunity provide for prior notice and the 660.409 and 660.411 and is exempt from for public comment under 5 U.S.C. opportunity for public comment review under Executive Order 12866. 553(b)(B) because such notification between the time the need to provide Authority: 16 U.S.C. 1801 et seq. would be impracticable. As previously alternative landing ports was known noted, actual notice of the regulatory and the opening of the fishery on May Dated: May 21, 2020. action was provided to fishers through 6, 2020. The AA also finds good cause He´le`ne M.N. Scalliet, telephone hotline and radio notification. to waive the 30-day delay in Acting Director, Office of Sustainable This action complies with the effectiveness required under 5 U.S.C. Fisheries, National Marine Fisheries Service. requirements of the annual management 553(d)(3), as a delay in effectiveness of [FR Doc. 2020–11358 Filed 5–26–20; 8:45 am] measures for ocean salmon fisheries (85 this action would not provide a legal BILLING CODE 3510–22–P

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Proposed Rules Federal Register Vol. 85, No. 102

Wednesday, May 27, 2020

This section of the FEDERAL REGISTER INFORMATION CONTACT section of this B. Submitting Comments contains notices to the public of the proposed document. Please include Docket ID NRC–2020– issuance of rules and regulations. The • Email comments to: purpose of these notices is to give interested 0055 in your comment submission. [email protected]. If you The NRC cautions you not to include persons an opportunity to participate in the do not receive an automatic email reply rule making prior to the adoption of the final identifying or contact information that rules. confirming receipt, then contact us at you do not want to be publicly 301–415–1677. disclosed in your comment submission. • Mail comments to: Secretary, U.S. The NRC will post all comment NUCLEAR REGULATORY Nuclear Regulatory Commission, submissions at http:// COMMISSION Washington, DC 20555–0001, ATTN: www.regulations.gov as well as enter the Rulemakings and Adjudications Staff. comment submissions into ADAMS. 10 CFR Part 50 For additional direction on obtaining The NRC does not routinely edit information and submitting comments, comment submissions to remove [Docket No. PRM–50–121; NRC–2020–0055] see ‘‘Obtaining Information and identifying or contact information. Submitting Comments’’ in the If you are requesting or aggregating Voluntary Adoption of Revised Design SUPPLEMENTARY INFORMATION section of comments from other persons for Basis Accident Dose Criteria this document. submission to the NRC, then you should FOR FURTHER INFORMATION CONTACT: AGENCY: Nuclear Regulatory inform those persons not to include Mark Lintz, Office of Nuclear Material Commission. identifying or contact information that Safety and Safeguards, U.S. Nuclear they do not want to be publicly ACTION: Petition for rulemaking; notice Regulatory Commission, Washington, disclosed in their comment submission. of docketing, and request for comment. DC 20555–001; telephone: 301–415– Your request should state that the NRC SUMMARY: The U.S. Nuclear Regulatory 4051. does not routinely edit comment Commission (NRC) has received a SUPPLEMENTARY INFORMATION: submissions to remove such information petition for rulemaking from John G. before making the comment I. Obtaining Information and Parillo dated November 23, 2019, submissions available to the public or Submitting Comments requesting that the NRC develop a entering the comment into ADAMS. voluntary rule allowing licensees to A. Obtaining Information II. The Petitioner and Petition adopt revised design basis accident dose Please refer to Docket ID NRC–2020– The petition for rulemaking was filed acceptance criteria that reflect modern 0055 when contacting the NRC about by John Parillo, a private citizen. The health physics recommendations and the availability of information for this petition requests the NRC revise its modern plant designs, that better action. You may obtain publicly- regulations to allow power reactor balance the protection of the control available information related to this licensees to adopt revised accident dose room operator and of the public, and action by any of the following methods: acceptance criteria as an alternative to that relieve the regulatory burden • Federal Rulemaking Website: Go to the accident dose criteria specified in associated with meeting the current https://www.regulations.gov and search § 50.67, ‘‘Accident source term.’’ The control room dose criterion. The for Docket ID NRC–2020–0055. revised accident dose criteria would be petition was docketed by the NRC on • NRC’s Agencywide Documents described in a separate voluntary rule February 19, 2020, and has been Access and Management System § 50.67(a) specifying a uniform value of assigned Docket No. PRM–50–121. The (ADAMS): You may obtain publicly- 100 milli-Sieverts (10 rem) for offsite NRC is examining the issues raised in available documents online in the locations and for the control room. The PRM–50–121 to determine whether they ADAMS Public Documents collection at petition may be found in ADAMS at should be considered in rulemaking. https://www.nrc.gov/reading-rm/ Accession No. ML20050M894. The NRC is requesting public comment adams.html. To begin the search, select on this petition at this time. ‘‘Begin Web-based ADAMS Search.’’ For III. Discussion of the Petition DATES: Submit comments by August 10, problems with ADAMS, please contact The petition states that the NRC 2020. Comments received after this date the NRC’s Public Document Room (PDR) design basis accident dose criteria and will be considered if it is practical to do reference staff at 1–800–397–4209, 301– the resulting design of accident so, but the NRC is able to assure 415–4737, or by email to pdr.resource@ mitigation systems could be perceived consideration only for comments nrc.gov. The petition is available in to emphasize protection of the control received on or before this date. ADAMS under Accession No. room operator over protection of the ADDRESSES: You may submit comments ML20050M894. public. The control room criterion by any of the following methods: • Attention: The Public Document restricts the calculated 30-day accident • Federal Rulemaking Website: Go to Room (PDR), where you may examine dose to the annual occupational limit of https://www.regulations.gov and search and order copies of public documents, 5 rem while the offsite dose criteria for Docket ID NRC–2020–0055. Address is currently closed. You may submit allows for a calculated dose of 25 rem questions about NRC dockets to Carol your request to the PDR via email at in 2 hours. The petition states that the Gallagher; telephone: 301–415–3463; [email protected] or call 1–800– offsite dose criteria were derived from email: [email protected]. For 397–4209 between 8:00 a.m. and 4:00 the siting practices of the earliest technical questions contact the p.m. (EST), Monday through Friday, reactors and do not reflect current individual listed in the FOR FURTHER except Federal holidays. health physics knowledge or modern

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plant construction. As a result, the become a subsidiary of a company that Register 1 an NPR proposing a new rule, petition argues that the design of is not subject to consolidated Part 354 of the FDIC’s Rules and accident mitigation systems may not be supervision by the Federal Reserve Regulations, that would require certain optimized for protecting public health Board, such company and the industrial conditions, commitments, and written and safety, and that the control room bank or industrial loan company must agreements for each deposit insurance accident dose criterion has proven to be enter into one or more written application approval, non-objection to a challenging to demonstrate with most agreements with the Federal Deposit change in control notice, and merger plants having very little margin to meet Insurance Corporation. The NPR application approval that would result the regulation. provided for a 60-day comment period, in an insured industrial bank or The petition proposes an alternative, which would have closed on June 1, industrial loan company becoming, after voluntary rule that would allow 2020. The FDIC has determined that an the effective date of any final rule, a licensees to adopt revised accident dose extension of the comment period until subsidiary of a company that is not criteria that the petition asserts resolve July 1, 2020, is appropriate. This action subject to consolidated supervision by the concerns identified above. will allow interested parties additional the Federal Reserve Board. time to analyze the proposal and The NPR stated the comment period IV. Conclusion prepare comments. would close on June 1, 2020. An The NRC has determined that the DATES: The comment period for the NPR extension of the comment period will petition meets the threshold sufficiency on parent companies of industrial banks provide additional time for interested requirements for docketing a petition for and industrial loan companies parties to prepare comments to address rulemaking under 10 CFR 2.803, ‘‘2.803 published on March 31, 2020 (85 FR the matters raised in the NPR. Petition for rulemaking—NRC action.’’ 17771), is extended from June 1, 2020, Therefore, the FDIC is extending the The NRC is examining the merits of the to July 1, 2020. comment period for the NPR on parent issues raised in PRM–50–121 to companies of industrial banks and determine whether these issues should ADDRESSES: You may submit comments, industrial loan companies from June 1, be considered in rulemaking. identified by RIN 3064–AF31, on the 2020, to July 1, 2020. notice of proposed rulemaking using Dated this 12th day of May, 2020. any of the following methods: Federal Deposit Insurance Corporation. For the Nuclear Regulatory Commission. • Agency website: https:// Dated at Washington, DC, on May 22, 2020. Annette L. Vietti-Cook, www.fdic.gov/regulations/laws/federal. Robert E. Feldman, Secretary of the Commission. Follow the instructions for submitting Executive Secretary. [FR Doc. 2020–10599 Filed 5–26–20; 8:45 am] comments on the agency website. [FR Doc. 2020–11446 Filed 5–22–20; 4:15 pm] BILLING CODE 7590–01–P • Email: [email protected]. Include BILLING CODE 6714–01–P RIN 3064–AF31 on the subject line of the message. FEDERAL DEPOSIT INSURANCE • Mail: Robert E. Feldman, Executive DEPARTMENT OF THE TREASURY CORPORATION Secretary, Attention: Comments, Federal Deposit Insurance Corporation, 550 17th Internal Revenue Service 12 CFR Part 354 Street NW, Washington, DC 20429. RIN 3064–AF31 • Hand Delivery: Comments may be 26 CFR Part 1 hand delivered to the guard station at [REG–124810–19] Parent Companies of Industrial Banks the rear of the 550 17th Street building and Industrial Loan Companies; (located on F Street) on business days RIN 1545–BP76 Extension of Comment Period between 7 a.m. and 5 p.m. Guidance Clarifying Premium Tax • AGENCY: Federal Deposit Insurance Public Inspection: All comments Credit Unaffected by Suspension of Corporation (FDIC). received, including any personal Personal Exemption Deduction ACTION: Notice of proposed rulemaking: information provided, will be posted Extension of comment period. generally without change to https:// AGENCY: Internal Revenue Service (IRS), www.fdic.gov/regulations/laws/federal. Treasury. SUMMARY: On March 31, 2020, the FOR FURTHER INFORMATION CONTACT: ACTION: Notice of proposed rulemaking. Federal Deposit Insurance Corporation Mark Flanigan, Senior Counsel, (202) SUMMARY: published in the Federal Register a 898–7426, [email protected]; This document includes Notice of Proposed Rulemaking (NPR) Catherine Topping, Counsel, (202) 898– proposed regulations under sections entitled ‘‘Parent Companies of Industrial 3975, [email protected]; Gregory Feder, 36B and 6011 of the Internal Revenue Banks and Industrial Loan Companies’’ Counsel, (202) 898–8724, gfeder@ Code (Code) that clarify that the proposing a rule that would require fdic.gov; Joyce Raidle, Counsel, (202) reduction of the personal exemption certain conditions and commitments for 898–6763, [email protected]; Merritt deduction to zero for taxable years each deposit insurance application Pardini, Counsel, (202) 898–6680, beginning after December 31, 2017, and approval, non-objection to a change in [email protected], Legal Division; Don before January 1, 2026, does not affect control notice, and merger application Hamm, Special Advisor, (202) 898– an individual taxpayer’s ability to claim approval that would result in an insured 3528, [email protected]; Scott Leifer, the premium tax credit. These proposed industrial bank or industrial loan Senior Review Examiner, (508) 698– regulations affect individuals who claim company becoming, after the effective 0361, Extension 8027, [email protected], the premium tax credit. date of any final rule, a subsidiary of a Division of Risk Management DATES: Written or electronic comments company that is not subject to Supervision. and requests for a public hearing must consolidated supervision by the Federal be received by July 27, 2020. Requests Reserve Board. The proposed rule also SUPPLEMENTARY INFORMATION: On March for a public hearing must be submitted would require that before any industrial 31, 2020, the Federal Deposit Insurance bank or industrial loan company may Corporation published in the Federal 1 85 FR 17771.

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as prescribed in the ‘‘Comments and under section 151, for purposes of any individual if for that month the Requests for a Public Hearing’’ section. other provision of the Code. The individual is eligible for minimum ADDRESSES: Commenters are strongly Conference Report states that this essential coverage other than coverage encouraged to submit public comments provision clarifies that the reduction of in the individual market. However, electronically. Submit electronic the personal exemption to zero ‘‘should under a special eligibility rule in submissions via the Federal not alter the operation of those § 1.36B–2(c)(4)(i), an individual who eRulemaking Portal at http:// provisions of the Code which refer to a may enroll in minimum essential www.regulations.gov (indicate IRS and taxpayer allowed a deduction . . . coverage because of a relationship to REG–124810–19) by following the under section 151.’’ See H.R. Rep. No. another person eligible for the coverage online instructions for submitting 115–466 at 203 n.16 (Conf. Rep.) (2017). but for whom the other eligible person comments. Once submitted to the Beginning in 2014, under the Patient does not claim a personal exemption Federal eRulemaking Portal, comments Protection and Affordable Care Act, deduction under section 151, is treated cannot be edited or withdrawn. The IRS Public Law 111–148 (124 Stat. 119 as eligible for minimum essential expects to have limited personnel (2010)), and the Health Care and coverage under such coverage only for available to process public comments Education Reconciliation Act of 2010, months that the related individual is that are submitted on paper through Public Law 111–152 (124 Stat. 1029 enrolled in the coverage. mail. Until further notice, any (2010)) (collectively, Affordable Care Under section 36B(a), a taxpayer’s comments submitted on paper will be Act), eligible individuals who purchase premium tax credit is equal to the considered to the extent practicable. coverage under a qualified health plan premium assistance credit amount for The Department of the Treasury through a Health Insurance Exchange the taxable year. Section 36B(b)(1) and (Treasury Department) and the Internal (Exchange) established under section § 1.36B–3(d) generally provide that the Revenue Service (IRS) will publish for 1311 of the Affordable Care Act may premium assistance credit amount is the public availability any comment claim a premium tax credit under sum of the premium assistance amounts submitted electronically, and to the section 36B. Several rules relating to the for all coverage months in the taxable premium tax credit apply based on year for individuals in the taxpayer’s extent practicable on paper, to its public whether a taxpayer properly claims or family, as defined in § 1.36B–1(d). docket. Send paper submissions to: claimed a personal exemption CC:PA:LPD:PR (REG–124810–19), Room Reconciliation of Advance Credit deduction under section 151 for the 5203, Internal Revenue Service, P.O. Payments With the Premium Tax Credit taxpayer, the taxpayer’s spouse, and any Box 7604, Ben Franklin Station, dependents. These rules affect eligibility Under section 1412 of the Affordable Washington, DC 20044. for the premium tax credit, computation Care Act, advance payments of the FOR FURTHER INFORMATION CONTACT: of the premium tax credit, reconciliation premium tax credit (advance credit Concerning the proposed regulations, of advance credit payments with the payments) may be paid directly to call Suzanne Sinno at (202) 317–4718 premium tax credit a taxpayer is qualified health plans on behalf of (not a toll-free number); concerning allowed for the taxable year, and income eligible individuals. The amount of submissions of comments and/or tax return filing requirements related to advance credit payments made on requests for a public hearing, call Regina the premium tax credit. behalf of a taxpayer in a taxable year is Johnson at (202) 317–5177 (not a toll- determined by a number of factors, free number). Eligibility for, and Computation of, the including projections of the taxpayer’s Premium Tax Credit SUPPLEMENTARY INFORMATION: household income and family size for To be eligible for the premium tax Background the taxable year. Under § 1.36B–4, a credit, an individual must be an taxpayer generally must reconcile all This document contains proposed applicable taxpayer. Under section advance credit payments for coverage of amendments to the Income Tax 36B(c)(1), an applicable taxpayer any member of the taxpayer’s family Regulations (26 CFR part 1) under generally is a taxpayer whose household with the amount of the premium tax sections 36B and 6011 of the Code. income for the taxable year is at least credit allowed under section 36B. Section 151 of the Code generally 100 percent but not more than 400 Section 1.36B–4(a)(1)(ii)(B)(1) and (2) allows a taxpayer to claim a personal percent of the Federal poverty line for provide specific allocation rules to exemption deduction, based on the the taxpayer’s family size for the taxable reconcile advance credit payments exemption amount defined in section year. A taxpayer’s family size is equal to when an individual is enrolled by one 151(d), for the taxpayer, the taxpayer’s the number of individuals in the taxpayer but another taxpayer claims a spouse, and any dependents, as defined taxpayer’s family. Section 1.36B–1(d) of personal exemption deduction for the in section 152 of the Code. On the Income Tax Regulations provides individual. If advance credit payments December 22, 2017, section 151(d)(5) that, for purposes of §§ 1.36B–1 through are made for coverage of an individual was added to the Code by section 11041 1.36B–5, a taxpayer’s family means the for whom no taxpayer claims a personal of Public Law 115–97, 131 Stat. 2054, individuals for whom a taxpayer exemption deduction, § 1.36B– 2082, commonly referred to as the Tax properly claims a deduction for a 4(a)(1)(ii)(C) provides that the taxpayer Cuts and Jobs Act (TCJA). Section personal exemption under section 151 who attested to the Exchange to the 151(d)(5)(A) provides that, for taxable for the taxable year. Section 1.36B– intention to claim a personal exemption years beginning after December 31, 2(b)(3) provides that an individual is not deduction for the individual as part of 2017, and before January 1, 2026, the an applicable taxpayer if another the advance credit payment eligibility term ‘‘exemption amount’’ means zero. taxpayer may claim a deduction under determination for coverage of the However, section 151(d)(5)(B) provides section 151 for the individual for a individual must reconcile the advance that the reduction of the exemption taxable year beginning in the calendar credit payments. amount to zero is not taken into account year in which the individual’s taxable in determining whether a deduction year begins. Income Tax Return Filing Requirements under section 151 is allowed or Section 36B(c)(2) provides that the Related to the Premium Tax Credit allowable to a taxpayer, or whether a premium tax credit generally is not Section 6011 provides the general taxpayer is entitled to a deduction allowed for a month with respect to an rules for filing a return. Section 1.6011–

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8 requires a taxpayer who receives the determined the personal exemption taxpayers who receive the benefit of benefit of advance credit payments to deduction by putting the name and TIN advance credit payments or claim the file an income tax return for that taxable of each individual in the taxpayer’s premium tax credit). These conforming year to reconcile advance credit family on the taxpayer’s income tax changes delete references such as payments with the taxpayer’s premium return, multiplying the number of ‘‘claim a personal exemption tax credit. The regulation further allowed exemptions by the exemption deduction,’’ ‘‘claims a personal provides that if advance credit amount, and entering that amount on exemption deduction,’’ or ‘‘claimed as a payments are made for coverage of an his or her income tax return. Under personal exemption deduction’’ in the individual for whom no taxpayer claims newly enacted section 151(d)(5), the current regulations and replace them a personal exemption deduction, the personal exemption deduction is zero with other terms consistent with the taxpayer who attested to the Exchange for taxable years beginning after definition of family in proposed to the intention to claim a personal December 31, 2017, and before January § 1.36B–1(d). exemption deduction for the individual 1, 2026. Although the amount of the as part of the advance credit payment deduction for personal exemptions is Proposed Applicability Date eligibility determination for coverage of reduced to zero for those years, These regulations are proposed to the individual must file a tax return and taxpayers must include on their tax apply to taxable years ending after the reconcile the advance credit payments. returns the names and TINs of date the Treasury decision adopting Taxpayers who are required to reconcile individuals for whom they are allowed these regulations as final regulations is advance credit payments or who claim a personal exemption deduction (taking published in the Federal Register. In the premium tax credit must complete into account section 151(d)(5)(B)) in addition, taxpayers may rely on these Form 8962, Premium Tax Credit (PTC), order to claim various tax benefits with proposed regulations for taxable years to and file it with their tax return. respect to those individuals. which section 151(d)(5) applies ending These proposed regulations adopt the Notice 2018–84 on or before that date. See section substance of the guidance in Notice 7805(b)(7). On November 5, 2018, the Treasury 2018–84 by amending the regulations Department and the IRS issued Notice under sections 36B and 6011 to clarify Special Analyses 2018–84, 2018–45 I.R.B. 768, which that the reduction of the personal These proposed regulations are not provided interim guidance clarifying exemption deduction to zero under subject to review under section 6(b) of that the reduction of the personal section 151(d)(5) does not affect the Executive Order 12866 pursuant to the exemption deduction to zero under ability of individual taxpayers to claim Memorandum of Agreement (April 11, section 151(d)(5) does not affect the the premium tax credit. Specifically, 2018) between the Treasury Department ability of individual taxpayers to claim these proposed regulations amend the and the Office of Management and the premium tax credit. Specifically, the definition of family in § 1.36B–1(d) to Budget regarding review of tax notice provides that (1) a taxpayer is provide that a taxpayer’s family means regulations. considered to have claimed a personal the taxpayer, including both spouses in In accordance with the Regulatory exemption deduction for himself or the case of a joint return (except for Flexibility Act (5 U.S.C. chapter 6), it is herself for a taxable year if the taxpayer individuals who qualify as a dependent hereby certified that this proposed rule files an income tax return for the year of another taxpayer under section 152), will not have a significant economic and does not qualify as a dependent of and any other individual for whom the impact on a substantial number of small another taxpayer under section 152 for taxpayer is allowed a personal entities. This certification is based on the year; and (2) a taxpayer is exemption deduction (taking into the fact that the proposed regulations considered to have claimed a personal account section 152(d)(5)(B)) and whom affect individual taxpayers, not entities. exemption deduction for an individual the taxpayer properly reports on the Pursuant to section 7805(f), these other than the taxpayer if the taxpayer taxpayer’s income tax return for the proposed regulations have been is allowed a personal exemption taxable year. The proposed regulations submitted to the Chief Counsel for deduction for the individual, taking into provide that an individual is reported Advocacy of the Small Business account section 151(d)(5)(B), and lists on the taxpayer’s income tax return if Administration for comment on their the individual’s name and taxpayer the individual’s name and TIN are listed impact on small business. identification number (TIN) on the Form on the taxpayer’s Form 1040 series 1040, U.S. Individual Income Tax return. Unfunded Mandates Reform Act Return, or Form 1040NR, U.S. The definition of family and family Section 202 of the Unfunded Nonresident Alien Income Tax Return, size in proposed § 1.36B–1(d) will apply Mandates Reform Act of 1995 (UMRA) the taxpayer files for the year. The for purposes of §§ 1.36B–1 through requires that agencies assess anticipated notice states that until further guidance 1.36B–5. Thus, the definition will apply costs and benefits and take certain other is issued, the interim guidance to determine the computation of the actions before issuing a final rule that described in the notice applies. The premium tax credit under § 1.36B–3(d), includes any Federal mandate that may notice also states that the Treasury which is based on the sum of the result in expenditures in any one year Department and the IRS intend to premium assistance amounts for all by a state, local, or tribal government, in amend the regulations under sections coverage months in the taxable year for the aggregate, or by the private sector, of 36B and 6011 to clarify the application individuals in the taxpayer’s family. In $100 million (updated annually for of section 151(d)(5). addition, the proposed regulations make inflation). This rule does not include conforming changes to the rules in any Federal mandate that may result in Explanation of Provisions § 1.36B–2 (relating to eligibility for, and expenditures by state, local, or tribal The current regulations under section computation of, the premium tax governments, or by the private sector in 36B provide that a taxpayer’s family credit), § 1.36B–4 (relating to excess of that threshold. means the individuals for whom the reconciliation of advance credit taxpayer claims a personal exemption payments with the premium tax credit), Executive Order 13132: Federalism deduction under section 151. For tax and § 1.6011–8 (relating to the income Executive Order 13132 (entitled years prior to 2018, a taxpayer tax return filing requirements for ‘‘Federalism’’) prohibits an agency from

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publishing any rule that has federalism List of Subjects in 26 CFR Part 1 ■ d. Revising paragraph (o). implications if the rule either imposes Income taxes, Reporting and The additions and revision read as substantial, direct compliance costs on recordkeeping requirements. follows: state and local governments, and is not § 1.36B–1 Premium tax credit definitions. required by statute, or preempts state Proposed Amendments to the law, unless the agency meets the Regulations * * * * * consultation and funding requirements Accordingly, 26 CFR part 1 is (d) Family and family size—(1) In of section 6 of the Executive Order. This proposed to be amended as follows: general. *** proposed rule does not have federalism (2) Special rule for tax years to which implications and does not impose PART 1—INCOME TAXES section 151(d)(5) applies. For taxable substantial direct compliance costs on years to which section 151(d)(5) applies, ■ state and local governments or preempt Paragraph 1. The authority citation a taxpayer’s family means the taxpayer, state law within the meaning of the for part 1 is amended by adding including both spouses in the case of a sectional authorities in numerical order Executive Order. joint return, except for individuals who to read in part as follows: qualify as a dependent of another Statement of Availability of IRS Authority: 26 U.S.C. 7805 * * * taxpayer under section 152, and any Documents * * * * * other individual for whom the taxpayer is allowed a personal exemption The regulations, notices and other Sections 1.36B–0, 1.36B–1, 1.36B–2, and 1.36B–4 also issued under 26 U.S.C. 36B(g). deduction and whom the taxpayer guidance cited in this preamble are Section 1.6011–8 also issued under 26 properly reports on the taxpayer’s published in the Internal Revenue U.S.C. 6011. income tax return for the taxable year. Bulletin and are available from the * * * * * For purposes of this paragraph (d)(2), an Superintendent of Documents, U.S. ■ Par. 2. Section 1.36B–0 is amended individual is reported on the taxpayer’s Government Publishing Office, by: income tax return if the individual’s Washington, DC 20402, or by visiting ■ a. Revising the entries for § 1.36B–1(d) name and taxpayer identification the IRS website at www.irs.gov. and (o); number (TIN) are listed on the Comments and Requests for a Public ■ b. Revising the entries for § 1.36B– taxpayer’s Form 1040 series return. See Hearing 2(c)(4)(i) and (e); and § 601.602. ■ c. Revising the entries for § 1.36B– * * * * * Before these proposed regulations are 4(a)(1)(ii)(B) and (C), and (c). (o) Applicability dates. (1) Except for adopted as final regulations, The revisions read as follows: paragraphs (d)(2), (l), and (m) of this consideration will be given to comments § 1.36B–1 Premium tax credit definitions. section, this section applies to taxable that are submitted timely to the IRS as years ending after December 31, 2013. * * * * * prescribed in this preamble in the (2) Paragraph (d)(2) of this section (d) Family and family size. ADDRESSES section. The Treasury applies to taxable years ending after [the (1) In general. Department and the IRS request date the Treasury decision adopting (2) Special rule for tax years to which comments on all aspects of the proposed these regulations as final regulations is section 151(d)(5) applies. regulations. Any electronic comments published in the Federal Register]. submitted, and to the extent practicable * * * * * (3) Paragraphs (l) and (m) of this any paper comments submitted, will be (o) Applicability dates. section apply to taxable years beginning made available at www.regulations.gov § 1.36B–2 Eligibility for premium tax after December 31, 2018. Paragraphs (l) or upon request. credit. and (m) of § 1.36B–1 as contained in 26 A public hearing will be scheduled if * * * * * CFR part 1 edition revised as of April 1, requested in writing by any person who (c) * * * 2016, apply to taxable years ending after timely submits electronic or written (4) * * * December 31, 2013, and beginning comments. Requests for a public hearing (i) Related individual. before January 1, 2019. ■ are also encouraged to be made * * * * * Par. 4. Section 1.36B–2 is amended electronically. If a public hearing is (e) Applicability dates. by: ■ scheduled, notice of the date, time, and a. Revising paragraph (c)(4)(i); § 1.36B–4 Reconciling the premium tax ■ b. Revising the heading for paragraph place for the hearing will be published credit with advance credit payments. in the Federal Register. Announcement (e); and * * * * * ■ 2020–4, 2020–17 IRB 1, provides that c. Adding paragraph (e)(4). (a) * * * until further notice, public hearings The addition and revisions read as (1) * * * follows: conducted by the IRS will be held (ii) * * * telephonically. Any telephonic hearing (B) Individuals enrolled by a taxpayer § 1.36B–2 Eligibility for premium tax will be made accessible to people with and claimed by another taxpayer. credit. disabilities. (C) Responsibility for advance credit * * * * * Drafting Information payments for an individual not reported (c) * * * on any taxpayer’s return. (4) Special eligibility rules—(i) The principal author of these * * * * * Related individual. An individual who proposed regulations is Suzanne R. (c) Applicability dates. may enroll in minimum essential Sinno of the Office of Associate Chief ■ Par. 3. Section 1.36B–1 is amended by coverage because of a relationship to Counsel (Income Tax and Accounting). ■ a. Redesignating the text of paragraph another person eligible for the coverage, However, other personnel from the (d) as paragraph (d)(1); but is not included in the family, as Treasury Department and the IRS ■ b. Adding a paragraph heading to defined in § 1.36B–1(d), of the other participated in the development of the newly designated paragraph (d)(1); eligible person, is treated as eligible for regulations. ■ c. Adding paragraph (d)(2); and such minimum essential coverage only

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for months that the related individual is regulations as final regulations is SUMMARY: This document sets forth a enrolled in the coverage. published in the Federal Register]. proposed regulation that provides rules * * * * * ■ Par. 6. Section 1.6011–8 is amended for Federal income tax withholding on (e) Applicability dates. *** by revising paragraphs (a) and (b) to certain periodic retirement and annuity (4) Paragraph (c)(4)(i) of this section read as follows: payments to implement an amendment made by the Tax Cuts and Jobs Act. This applies to taxable years ending after [the § 1.6011–8 Requirement of income tax date the Treasury decision adopting return for taxpayers who claim the premium proposed regulation would affect payors these regulations as final regulations is tax credit under section 36B. of certain periodic payments, plan published in the Federal Register]. (a) Requirement of return. Except as administrators that are required to ■ Par. 5. Section 1.36B–4 is amended otherwise provided in this paragraph withhold on such payments, and payees by: (a), a taxpayer who receives the benefit who receive such payments. ■ a. Adding a sentence to the end of of advance payments of the premium DATES: Written or electronic comments paragraph (a)(1)(ii)(B)(1); tax credit (advance credit payments) and requests for a public hearing must ■ b. Revising paragraphs (a)(1)(ii)(B)(2) under section 36B must file an income be received by July 27, 2020. Requests and (a)(1)(ii)(C); and tax return for that taxable year on or for a public hearing must be submitted ■ c. Revising the heading to paragraph before the due date for the return as prescribed in the ‘‘Comments and (c) and adding a sentence at the end of (including extensions of time for filing) Requests for a Public Hearing’’ section. the paragraph. and reconcile the advance credit ADDRESSES: Commenters are strongly The additions and revisions read as payments. However, if advance credit encouraged to submit public comments follows: payments are made for coverage of an electronically. Submit electronic submissions via the Federal § 1.36B–4 Reconciling the premium tax individual who is not included in any credit with advance credit payments. taxpayer’s family, as defined in § 1.36B– eRulemaking Portal at 1(d), the taxpayer who attested to the www.regulations.gov (indicate IRS and (a) * * * Exchange to the intention to include REG–100320–20) by following the (1) * * * such individual in the taxpayer’s family online instructions for submitting (ii) * * * as part of the advance credit payment comments. Once submitted to the (B) Individual enrolled by a taxpayer eligibility determination for coverage of Federal eRulemaking Portal, comments and claimed by another taxpayer—(1) In the individual must file a tax return and cannot be edited or withdrawn. The IRS general. * * * For taxable years to reconcile the advance credit payments. expects to have limited personnel which section 151(d)(5) applies, the (b) Applicability dates—(1) In general. available to process public comments claiming taxpayer is the taxpayer who Except as provided in paragraph (b)(2) that are submitted on paper through properly includes the shifting enrollee of this section, paragraph (a) of this mail. Until further notice, any in his or her family for the taxable year. section applies for taxable years ending comments submitted on paper will be (2) Allocation percentage. The on or after December 31, 2020. considered to the extent practicable. enrolling taxpayer and claiming (2) Prior periods. Paragraph (a) of this The Department of the Treasury taxpayer may agree on any allocation section as contained in 26 CFR part 1 (Treasury Department) and the IRS will percentage between zero and one edition revised as of April 1, 2016, publish for public availability any hundred percent. If the enrolling applies to taxable years ending after comment submitted electronically, and taxpayer and claiming taxpayer do not December 31, 2013, and beginning to the extent practicable on paper, to its agree on an allocation percentage, the before January 1, 2017. Paragraph (a) of public docket. percentage is equal to the number of this section as contained in 26 CFR part Send paper submissions to: shifting enrollees properly included in 1 edition revised as of April 1, 2020, CC:PA:LPD:PR (REG–100320–20), Room the enrolling taxpayer’s family divided applies to taxable years beginning after 5203, Internal Revenue Service, P.O. by the number of individuals enrolled December 31, 2016, and ending before Box 7604, Ben Franklin Station, by the enrolling taxpayer in the same December 31, 2020. Washington, DC 20044. qualified health plan as the shifting FOR FURTHER INFORMATION CONTACT: enrollee. Sunita Lough, Concerning the proposed regulation, * * * * * Deputy Commissioner for Services and Enforcement. Kara M. Soderstrom of the Office of (C) Responsibility for advance credit Associate Chief Counsel (Employee [FR Doc. 2020–10069 Filed 5–26–20; 8:45 am] payments for an individual not reported Benefits, Exempt Organizations, and on any taxpayer’s return. If advance BILLING CODE 4830–01–P Employment Taxes) at (202) 317–5234; credit payments are made for coverage concerning submissions of comments of an individual who is not included in DEPARTMENT OF THE TREASURY and/or requests for a public hearing, any taxpayer’s family, as defined in Regina Johnson, (202) 317–5177 (not § 1.36B–1(d), the taxpayer who attested Internal Revenue Service toll-free numbers). to the Exchange to the intention to SUPPLEMENTARY INFORMATION: include such individual in the 26 CFR Parts 31 and 35 taxpayer’s family as part of the advance Background credit payment eligibility determination [REG–100320–20] This document sets forth a proposed for coverage of the individual must RIN 1545–BP69 amendment to the Employment Tax reconcile the advance credit payments. Regulations (26 CFR parts 31 and 35) * * * * * Income Tax Withholding on Certain under section 3405 of the Internal (c) Applicability dates. * * * The last Periodic Retirement and Annuity Revenue Code (Code). This proposed sentence of paragraph (a)(1)(ii)(B)(1), Payments Under Section 3405(a) regulation would update certain paragraph (a)(1)(ii)(B)(2), and paragraph AGENCY: Internal Revenue Service (IRS), provisions of § 35.3405–1T to conform (a)(1)(ii)(C) of this section apply to Treasury. to a change to section 3405(a)(4) made taxable years ending after [the date the by section 11041(c)(2)(G) of the Tax ACTION: Notice of proposed rulemaking. Treasury decision adopting these Cuts and Jobs Act, Public Law 115–97,

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131 Stat. 2054 (2017) (TCJA). Prior to § 31.3405(e)–1 was published in the 3. Withholding on Periodic Payments amendment by TCJA, section 3405(a)(4) Federal Register (84 FR 25209) to Section 3405(a) requires the payor of provided that, in the case of any propose rules applicable to periodic any periodic payment to withhold from periodic payment for which a payments and nonperiodic distributions the payment as if the payment were withholding certificate is not in effect, (other than eligible rollover wages paid by an employer to an the amount withheld from the periodic distributions) that are to be delivered employee, unless an individual has payment (the default rate of outside the United States and its elected under section 3405(a)(2) not to withholding) is determined by treating possessions. have withholding apply, subject to the the payee as a married individual following exceptions. First, section claiming three withholding exemptions. 2. Definition of Periodic Payment 3405(c)(1)(A) provides that section As amended by TCJA, section 3405(a)(4) 3405(a) does not apply in the case of provides that the default rate of While the guidance described in any designated distribution that is an withholding on periodic payments is Section 1 of this Background relates to eligible rollover distribution (as defined determined under rules prescribed by all types of payments and distributions in section 402(f)(2)(A)). Second, section the Secretary. Section 35.3405–1T subject to withholding under section 3405(e)(12) provides that no election reflects the rule under section 3405(a)(4) 3405, this proposed regulation under section 3405(a)(2) will be treated prior to amendment by TCJA. addresses only the change made by section 11041(c)(2)(G) of TCJA to as in effect (and the provisions of 1. Statutory and Regulatory Framework section 3405(a)(4), and therefore applies section 3405(a)(4) for determining the Section 3405 provides Federal income only to certain periodic payments. default rate of withholding will not apply) if a payee fails to furnish the tax withholding rules for payments of A periodic payment is defined in pensions, annuities, and certain other payee’s Taxpayer Identification Number section 3405(e)(2) as ‘‘a designated deferred income (retirement and (TIN) to the payor in the manner distribution which is an annuity or annuity payments). Retirement and required by the Secretary or the similar periodic payment.’’ Subject to Secretary notifies the payor before any annuity payments that are subject to 1 withholding under section 3405 include certain exceptions, a designated payment or distribution that the TIN periodic payments, nonperiodic distribution generally is defined in furnished by the payee is incorrect. distributions, and eligible rollover section 3405(e)(1)(A) as any distribution Third, under section 3405(e)(13), no distributions. or payment from or under an employer election under section 3405(a)(2) may be The Treasury Department and the IRS deferred compensation plan, an made with respect to certain periodic have issued several sets of regulations individual retirement plan (as defined payments to be delivered outside of the under section 3405 that provide in section 7701(a)(37)), or a commercial United States and its possessions. annuity. For this purpose, an employer guidance regarding withholding on 4. Default Rate of Withholding on periodic payments, nonperiodic deferred compensation plan is defined Periodic Payments and TCJA distributions, and eligible rollover in section 3405(e)(5) as any pension, Amendment distributions. On October 14, 1982, the annuity, profit-sharing, or stock bonus Treasury Department and the IRS issued plan or other plan deferring the receipt Before amendment by TCJA, section § 35.3405–1T (TD 7839) (47 FR 45868), of compensation, and a commercial 3405(a)(4) provided that, in the case of which provides general rules addressing annuity is defined in section 3405(e)(6) any periodic payment with respect to withholding requirements and specific as an annuity, endowment, or life which a withholding certificate is not in rules addressing withholding on insurance contract issued by an effect, the amount withheld from the periodic payments and nonperiodic insurance company licensed to do periodic payment is ‘‘determined by distributions (other than eligible business under the laws of any State. treating the payee as a married rollover distributions), notice and Section 35.3405–1T, Q&A a–9, provides individual claiming 3 withholding election procedures, and reporting and that a periodic payment includes an exemptions.’’ TCJA amended section recordkeeping requirements. On annuity or similar periodic payment, 3405(a)(4) to eliminate the requirement September 22, 1995, the Treasury whether paid by a licensed life that the payee be treated as a married Department and the IRS issued individual claiming three withholding insurance company, a financial § 31.3405(c)–1 (TD 8619) (60 FR 49215), exemptions and to provide instead that, institution, or a plan, and that an which provides rules for withholding on in the case of any periodic payment ‘‘annuity’’ is a series of payments eligible rollover distributions, as with respect to which a withholding payable over a period greater than one defined in section 402(f)(2)(A) certificate is not in effect, the amount year and taxable under section 72 as (generally referring to distributions from withheld from the periodic payment plans qualified under section 401(a), amounts received as an annuity, will be ‘‘determined under rules section 403(a) plans, section 403(b) tax- whether or not the payments are prescribed by the Secretary.’’ sheltered annuity plans, or section variable in amount. 457(b) plans maintained by a 5. Guidance Regarding the Default Rate governmental employer that are eligible 1 Under section 3405(e)(1)(B), a designated of Withholding on Periodic Payments distribution does not include any amount that is Following enactment of TCJA, the to be rolled over to an IRA (an wages without regard to section 3405; the portion individual retirement account or of a distribution or payment (excluding any Treasury Department and the IRS issued individual retirement annuity) or distribution or payment from or under an guidance addressing the change to another eligible retirement plan). On individual retirement plan, other than a Roth IRA) section 3405(a)(4). Section V of Notice which it is reasonable to believe is not includible 2018–14, 2018–7 I.R.B. 353, and section February 8, 2000, the Treasury in gross income; any amount that is subject to Department and the IRS issued withholding under subchapter A of chapter 3 10 of Notice 2018–92, 2018–51 I.R.B. § 35.3405–1 (TD 8873) (65 FR 6007), (relating to withholding of tax on nonresident aliens 1038, provided that, for 2018 and 2019, which provides rules regarding the and foreign corporations) by the person paying such respectively, the rules for withholding amount or which would be so subject but for a tax when no withholding certificate is medium through which notices required treaty; or any distribution described in section under section 3405 may be provided. 404(k)(2) (relating to distributions of ‘‘applicable furnished with respect to periodic On May 31, 2019, proposed dividends’’ by an employee stock ownership plan). payments under section 3405(a) would

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parallel the rules for prior years and § 35.3405–1T, Q&A d–21).4 The provided in the 2019 Publication 505, would be based on treating the payee as proposed regulation would update and ‘‘Tax Withholding and Estimated Tax.’’ a married individual claiming three replace the provisions of Q&As a–10, b– 2. Other Provisions of § 35.3405–1T withholding allowances. Similarly, 3, and b–4 in new § 31.3405(a)–1, which section IV of Notice 2020–3, 2020–3 provides that the default rate of Proposed § 31.3405(a)–1 refers I.R.B. 330, provides that, for 2020, the withholding on periodic payments is taxpayers to § 35.3405–1T, among other default rate of withholding from determined in the manner described in regulations under section 3405, for periodic payments under section the applicable forms, instructions, additional guidance regarding Federal 3405(a) is based on treating the payee as publications, and other guidance income tax withholding on periodic a married individual claiming three prescribed by the Commissioner. payments, and is intended to be read in withholding allowances and applying This proposed § 31.3405(a)–1 conjunction with those other that status when referring to the provides a flexible and administrable regulations. For example, proposed applicable withholding tables and rule that leaves the communication and § 31.3405(a)–1(b) provides general related computational procedures in the mechanical details of the default rate of guidance regarding Federal income tax 2020 Publication 15–T, ‘‘Federal Income withholding on periodic payments to be withholding on periodic payments, but Tax Withholding Methods.’’ 2 provided in applicable forms, an election of no withholding under section 3405(a)(2) may be available as Explanation of Provisions instructions, publications, and other guidance. These materials can be described in § 35.3405–1T, Q&A d–1. While this proposed regulation would 1. Default Rate of Withholding on updated quickly as needed (for update certain Q&As in § 35.3405–1T, it Periodic Payments legislative changes or other reasons) to would not update all of the Q&As, provide payors and plan administrators As indicated in the Background including several Q&As that do not processing payments adequate time to reflect legislative changes that became section of the preamble, certain program their systems to withhold the provisions of § 35.3405–1T reflect the effective after the publication of proper amount of income tax. Currently, § 35.3405–1T. For example, the rule under section 3405(a)(4) prior to withholding on periodic payments, amendment by TCJA.3 Specifically, description in § 35.3405–1T, Q&A d–1, including the default rate of of an election of no withholding has not Q&As a–10, b–3, and b–4 of § 35.3405– withholding, is explained in the 1T each provide that the default rate of been updated to reflect that an election instructions to the 2020 Form W–4P, may not be available due to the withholding on periodic payments is ‘‘Withholding Certificate for Pension or determined by treating the payee as restrictions set forth in section Annuity Payments,’’ the 2020 3405(e)(12) (failure to provide correct married and claiming three withholding Publication 15–T, and related allowances. The proposed regulation TIN) or 3405(e)(13) (certain payments to publications. The 2020 Publication 15– be delivered outside of the United States would remove these three Q&As from T also provides the tables that payors § 35.3405–1T because they prescribe the and its possessions). The current use to calculate withholding on periodic priority of the Treasury Department and substantive default rate of withholding payments (and the tables that employers rule under section 3405(a)(4) prior to the IRS is to address the provisions of use to calculate withholding on taxable § 35.3405–1T that were impacted by amendment by TCJA. The proposed wages). regulation would not remove other TCJA. In the future, the Treasury Proposed § 31.3405(a)–1 would also Department and the IRS intend to Q&As in § 35.3405–1T that reference the generally update Q&As a–10, b–3, and pre-TCJA rule under section 3405(a)(4) update the provisions of § 35.3405–1T b–4 of § 35.3405–1T to reflect relevant to reflect all statutory changes since the but do not require payors to withhold statutory changes and provide based upon that pre-TCJA rule (for initial promulgation of the temporary clarifications. Notably, in accordance regulation. example, the sample notice in with section 3405(a)(3), proposed § 31.3405(a)–1 would update the rules Proposed Applicability Date 2 Notice 2020–3 also provides that the Treasury for determining the effective date of a This regulation is proposed to apply Department and the IRS are considering whether the default rate of withholding from periodic payee’s Form W–4P by referencing the to periodic payments made after payments that is in effect for 2020 will continue to rules under section 3402(f)(3) and the December 31, 2020. Notwithstanding be appropriate for calendar years after 2020, and applicable forms, instructions, § 35.3405–1T, taxpayers may rely on the requests comments on whether the adoption of a publications, and other guidance rules set forth in this notice of proposed new default rate of withholding on periodic 5 payments that applies prospectively would present prescribed by the Commissioner. rulemaking, in their entirety, until the any administrative challenges. One comment was Section 3402(f)(3) provides different date of publication of a Treasury received on this issue (available at: https:// withholding certificate effective date Decision adopting this proposed rule as www.regulations.gov/document?D=IRS-2019-0051- rules for cases in which there is no a final regulation. 0004). The commenter provides suggestions regarding the effective date and prospective previous withholding certificate in Special Analyses application of any change to the default rate of effect and cases in which a previous withholding on periodic payments and suggestions withholding certificate is in effect. Form 1. Regulatory Planning and Review regarding the applicable withholding tables for W–4P effective date information is periodic payments for calendar years after 2020. This regulation is not subject to 3 In addition to the amendment made by section review under section 6(b) of Executive 11041(c)(2)(G) of TCJA, described in the 4 As described in Section 2 of this Explanation of Order 12866 pursuant to the Background section of the preamble, section Provisions, the Treasury Department and the IRS Memorandum of Agreement (April 11, 11041(c)(2)(F) of TCJA amended section 3405(a)(3) intend to update other Q&As in § 35.3405–1T in the and (4) (and the heading for paragraph (4)) to future. 2018) between the Treasury Department replace each reference to ‘‘exemption’’ with 5 Thus, proposed § 31.3405(a)–1 addresses the and the Office of Management and ‘‘allowance,’’ effectively replacing references to amendment of section 3402(f)(3)(B) by section Budget regarding review of tax ‘‘withholding exemption certificate’’ with 10302(a) of the Omnibus Budget Reconciliation Act regulations. ‘‘withholding allowance certificate.’’ However, the of 1987, Public Law No. 100–203, 101 Stat. 1330 Treasury Department and the IRS have determined (1987). The amendment to section 3402(f)(3)(B) 2. Paperwork Reduction Act that no updates to § 35.3405–1T are required to affected the rules in Q&A b–3 of § 35.3405–1T for implement section 11041(c)(2)(F) of TCJA because determining the effective date of a payee’s Form W– Any collection of information § 35.3405–1T refers to a ‘‘withholding certificate.’’ 4P. associated with this notice of proposed

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rulemaking has been submitted to the Washington, DC 20402, or by visiting entry for § 31.3405(a)–1 in numerical Office of Management and Budget for the IRS website at http://www.irs.gov. order to read in part as follows: review under OMB control number Comments and Requests for a Public Authority: 26 U.S.C. 7805. 1545–0074 in accordance with the Hearing * * * * * Paperwork Reduction Act of 1995 (44 Section 31.3405(a)–1 also issued under 26 U.S.C. 3507(d)). In general, the Before this proposed amendment to U.S.C. 3405(a)(4). collection of information is required the regulations is adopted as a final regulation, consideration will be given * * * * * under section 3405 of the Code. The ■ Par. 2. Section 31.3405(a)–1 is added to comments that are submitted timely Treasury Department and the IRS to read as follows: request comments on all aspects of to the IRS as prescribed in the preamble information collection burdens related under the ADDRESSES section. The § 31.3405(a)–1 Questions and answers to this proposed regulation, including Treasury Department and the IRS relating to Federal income tax withholding estimates for how much time it would request comments on all aspects of the on periodic retirement and annuity take to comply with the paperwork proposed regulation. Any electronic payments. burdens described in OMB control comments submitted, and to the extent (a) The following questions and number 1545–0074 and ways for the IRS practicable any paper comments answers relate to Federal income tax to minimize the paperwork burden. An submitted, will be made available at withholding on periodic payments agency may not conduct or sponsor and www.regulations.gov or upon request. under section 3405(a), as amended by a person is not required to respond to A public hearing will be scheduled if section 11041(c)(2)(G) of the Tax Cuts a collection of information unless it requested in writing by any person who and Jobs Act (Pub. L. 115–97, 131 Stat. displays a valid OMB control number. timely submits electronic or written 2054 (2017)). The withholding rules of comments. Requests for a public hearing section 3405(a) do not apply to periodic 3. Regulatory Flexibility Act are also encouraged to be made payments that are eligible rollover Under the Regulatory Flexibility Act electronically. If a public hearing is distributions (as defined in section (RFA) (5 U.S.C. chapter 6), it is hereby scheduled, notice of the date and time 402(f)(2)(A)). See generally section certified that this proposed regulation, if for the public hearing will be published 3405(c) and § 31.3405(c)–1 for Federal adopted, would not have a significant in the Federal Register. Announcement income tax withholding rules applicable economic impact on a substantial 2020–4, 2020–17 IRB 1, provides that to eligible rollover distributions. See number of small entities that are until further notice, public hearings section 3405(e)(13) for additional rules directly affected by the proposed conducted by the IRS will be held applicable to certain periodic payments regulation. The proposed regulation will telephonically. Any telephonic hearing under section 3405(a) and nonperiodic apply to all payors of periodic will be made accessible to people with distributions under section 3405(b) that payments, including small entities, and disabilities. are to be delivered outside the United is likely to affect a substantial number States and its possessions. For of small entities. The economic impact, Drafting Information additional guidance regarding periodic however, will not be significant. The The principal author of these payments, see §§ 35.3405–1 and primary change is to effect a TCJA proposed regulations is Kara M. 35.3405–1T of this chapter. legislative amendment to remove the Soderstrom, Office of Associate Chief (b)(1) Q–1: How will Federal income reference in section 3405(a)(4) to a Counsel (Employee Benefits, Exempt tax be withheld from a periodic married individual claiming three Organizations, and Employment Taxes). payment? exemptions as the default withholding However, other personnel from the (2) A–1: In the case of a periodic rate and to provide, in its place, that the Treasury Department and the IRS payment that is subject to withholding amount to be withheld is determined in participated in the development of these under section 3405(a), amounts are the applicable forms, instructions, proposed regulations. withheld as if the payment were a publications, and other guidance payment of wages by an employer to the prescribed by the Commissioner. List of Subjects employee for the appropriate payroll Accordingly, this rule would conform 26 CFR Part 31 period. If the payee has not furnished a the current regulation to the statute and withholding certificate, the amount to Employment taxes, Fishing vessels, will not have a significant economic be withheld is determined in the Gambling, Income taxes, Penalties, impact on a substantial number of small manner described in the applicable Pensions, Railroad retirement, Reporting entities. Notwithstanding this forms, instructions, publications, and and recordkeeping requirements, Social certification, the Treasury Department other guidance prescribed by the security, Unemployment compensation. and the IRS invite comments on any Commissioner. The rules for impact this rule would have on small 26 CFR Part 35 withholding when the payee has not entities. Employment taxes, Income taxes, furnished a withholding certificate Pursuant to section 7805(f), this Pensions, Reporting and recordkeeping apply regardless of whether the payor is notice of proposed rulemaking has been requirements. aware of the payee’s actual marital submitted to the Chief Counsel for status or actual Federal income tax Advocacy of the Small Business Proposed Amendments to the filing status. Administration for comment on its Regulations (c)(1) Q–2: Do rules similar to those impact on small business. Accordingly, 26 CFR parts 31 and 35 for wage withholding apply to the are proposed to be amended as follows: furnishing of a withholding certificate Statement of Availability of IRS for periodic payments? Documents PART 31—EMPLOYMENT TAXES AND (2) A–2: Yes. Unless the rules of IRS Notices cited in this preamble are COLLECTION OF INCOME TAX AT section 3405 specifically conflict with published in the Internal Revenue SOURCE the rules of section 3402, the rules for Bulletin and are available from the withholding on periodic payments that Superintendent of Documents, U.S. ■ Paragraph 1. The authority citation are not eligible rollover distributions Government Publishing Office, for part 31 is amended by adding an will parallel the rules for wage

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withholding. Thus, if a withholding designates viticultural areas to allow standards for the preparation and certificate is furnished by a payee, it vintners to better describe the origin of submission of petitions for the will generally take effect in accordance their wines and to allow consumers to establishment or modification of with section 3402(f)(3) and as provided better identify wines they may American viticultural areas (AVAs) and in applicable forms, instructions, purchase. TTB invites comments on this lists the approved AVAs. publications, and other guidance proposed addition to its regulations. Definition prescribed by the Commissioner. If no DATES: TTB must receive your withholding certificate is furnished, the comments on or before July 27, 2020. Section 4.25(e)(1)(i) of the TTB regulations (27 CFR 4.25(e)(1)(i)) defines amount withheld must be determined in ADDRESSES: You may electronically the manner described in the applicable submit comments to TTB on this a viticultural area for American wine as forms, instructions, publications, and proposal, and view copies of this a delimited grape-growing region having other guidance prescribed by the document, its supporting materials, and distinguishing features, as described in Commissioner for withholding on any comments TTB receives on it within part 9 of the regulations, and a name periodic payments when no Docket No. TTB–2020–0005 as posted and a delineated boundary, as withholding certificate is furnished. on Regulations.gov (https:// established in part 9 of the regulations. (d)(1) Q–3: What is the applicability www.regulations.gov), the Federal e- These designations allow vintners and date of this section? rulemaking portal. Please see the consumers to attribute a given quality, (2) A–3: This section applies with ‘‘Public Participation’’ section of this reputation, or other characteristic of a respect to periodic payments made after document below for full details on how wine made from grapes grown in an area December 31, 2020. to comment on this proposal via to the wine’s geographic origin. The Regulations.gov, U.S. mail, or hand establishment of AVAs allows vintners PART 35—EMPLOYMENT TAX AND to describe more accurately the origin of COLLECTION OF INCOME TAX AT delivery, and for full details on how to view or obtain copies of this document, their wines to consumers and helps SOURCE REGULATIONS UNDER THE consumers to identify wines they may TAX EQUITY AND FISCAL its supporting materials, and any comments related to this proposal. purchase. Establishment of an AVA is RESPONSIBILITY ACT OF 1982 neither an approval nor an endorsement FOR FURTHER INFORMATION CONTACT: ■ Par. 3. The authority citation for part by TTB of the wine produced in that Karen A. Thornton, Regulations and area. 35 continues to read in part as follows: Rulings Division, Alcohol and Tobacco Authority: 26 U.S.C. 6047(e), 7805; 68A Tax and Trade Bureau, 1310 G Street Requirements Stat. 917; 96 Stat. 625; Public Law 97–248 (96 NW, Box 12, Washington, DC 20005; Section 4.25(e)(2) of the TTB Stat. 623) * * * phone 202–453–1039, ext. 175. regulations (27 CFR 4.25(e)(2)) outlines § 35.3405–1T [Amended] SUPPLEMENTARY INFORMATION: the procedure for proposing an AVA ■ Par. 4. Section 35.3405–1T is Background on Viticultural Areas and provides that any interested party amended by removing and reserving may petition TTB to establish a grape- TTB Authority Q&A a–10, Q&A b–3, and Q&A b–4. growing region as an AVA. Section 9.12 Section 105(e) of the Federal Alcohol of the TTB regulations (27 CFR 9.12) Sunita Lough, Administration Act (FAA Act), 27 prescribes standards for petitions for the Deputy Commissioner for Services and U.S.C. 205(e), authorizes the Secretary establishment or modification of AVAs. Enforcement. of the Treasury to prescribe regulations Petitions to establish an AVA must [FR Doc. 2020–10679 Filed 5–26–20; 8:45 am] for the labeling of wine, distilled spirits, include the following: • BILLING CODE 4830–01–P and malt beverages. The FAA Act Evidence that the area within the provides that these regulations should, proposed AVA boundary is nationally among other things, prohibit consumer or locally known by the AVA name DEPARTMENT OF THE TREASURY deception and the use of misleading specified in the petition; statements on labels, and ensure that • An explanation of the basis for Alcohol and Tobacco Tax and Trade labels provide the consumer with defining the boundary of the proposed Bureau adequate information as to the identity AVA; and quality of the product. The Alcohol • A narrative description of the 27 CFR Part 9 and Tobacco Tax and Trade Bureau features of the proposed AVA that affect [Docket No. TTB–2020–0005; Notice No. (TTB) administers the FAA Act viticulture, such as climate, geology, 190] pursuant to section 1111(d) of the soils, physical features, and elevation, Homeland Security Act of 2002, that make the proposed AVA distinctive RIN 1513–AC60 codified at 6 U.S.C. 531(d). The and distinguish it from adjacent areas outside the proposed AVA boundary; Proposed Establishment of The Burn Secretary has delegated the functions • The appropriate United States of Columbia Valley Viticultural Area and duties in the administration and enforcement of these provisions to the Geological Survey (USGS) map(s) AGENCY: Alcohol and Tobacco Tax and TTB Administrator through Treasury showing the location of the proposed Trade Bureau, Treasury. Order 120–01, dated December 10, 2013 AVA, with the boundary of the ACTION: Notice of proposed rulemaking. (superseding Treasury Order 120–01, proposed AVA clearly drawn thereon; dated January 24, 2003). • If the proposed AVA is to be SUMMARY: The Alcohol and Tobacco Tax Part 4 of the TTB regulations (27 CFR established within, or overlapping, an and Trade Bureau (TTB) proposes to part 4) authorizes TTB to establish existing AVA, an explanation that both establish the 16,870-acre ‘‘The Burn of definitive viticultural areas and regulate identifies the attributes of the proposed Columbia Valley’’ viticultural area in the use of their names as appellations of AVA that are consistent with the Klickitat County, Washington. The origin on wine labels and in wine existing AVA and explains how the proposed AVA is located entirely within advertisements. Part 9 of the TTB proposed AVA is sufficiently distinct the existing Columbia Valley AVA. TTB regulations (27 CFR part 9) sets forth from the existing AVA and therefore

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appropriate for separate recognition; of the proposed AVA as ‘‘The Burn.’’ the soils within the proposed AVA are and Although the current paper U.S.G.S. derived from only 9 soil series or • A detailed narrative description of topographic maps do not label the complexes. The following table lists the the proposed AVA boundary based on region of the proposed AVA, the nine most commonly found soils within USGS map markings. petition did include a screen shot of the the proposed AVA, along with the 2 Petition To Establish The Burn of current U.S.G.S. online National Map percentage of the total soils each series Columbia Valley AVA which shows the region between Rock or complex comprises. Creek and Chapman Creek labeled as TTB received a petition from Kevin ‘‘The Burn.’’ The National Map also TABLE 1—MOST COMMON SOILS OF Corliss, Vice President of Vineyards for shows a road named ‘‘Burn Road’’ THE PROPOSED AVA Ste. Michelle Wine Estates, Joan R. running through the region of the Davenport, Professor of Soil Sciences at proposed AVA. In an email to TTB, one Soil series/complex name Percentage of Washington State University, and John of the petitioners states that, based on total soils Derrick, Vice President of Operations for her knowledge of the history of the Mercer Ranches, Inc., proposing to region, the road derives its name from Walla Walla silt loam (with- establish ‘‘The Burn of Columbia the common name for the region. The out cemented substratum) 30.16 Rock outcrop–Haploxeroll Valley’’ AVA. The proposed AVA is petition also included a page from a located in Klickitat County, complex ...... 13.57 high school biology website that shows Haploxeroll–Fluvaquent com- Washington, and is entirely within the a photo of wildflowers growing ‘‘in an plex ...... 8.37 existing Columbia Valley AVA (27 CFR area of south-central Klickitat County Fluventic Haploxeroll- 9.74). Within the 16,870-acre proposed known as The Burn.’’ 3 Finally, another Riverwash complex ...... 6.51 AVA, there are three (3) commercial web page included in the petition Rock outcrop Rubble and vineyards which cover a total of provides general information about complex ...... 6.08 approximately 1,261 acres and are Klickitat County and lists ‘‘The Burn’’ as Wato silt loam ...... 4.85 owned by two different entities. The an area within the county.4 Walla Walla silt loam (with petition was originally submitted under cemented substratum) ...... 4.07 the name ‘‘The Burn,’’ but the Boundary Evidence Endicott silt loam ...... 3.73 Endicott–Moxee complex ..... 2.55 petitioners later requested to change the The proposed The Burn of Columbia name to the more geographically Valley AVA is a roughly triangular specific ‘‘The Burn of Columbia Valley.’’ region of gently sloping land in the According to the petition, the silty The distinguishing features of the southwestern portion of the established loam soils that comprise the majority of proposed The Burn of Columbia Valley Columbia Valley AVA. The northern the proposed The Burn of Columbia AVA are its soils, climate, and bank of the Columbia River forms the Valley AVA have a good plant-available topography. southern boundary of the proposed water holding capacity. Such soils are AVA (the base of the triangle) and capable of delivering sufficient water to Proposed The Burn of Columbia Valley the vines during the growing season. AVA separates the proposed AVA from the flatter terrain across the river in Oregon. The higher water holding capacity of the Name Evidence The western boundary (the left edge of soils also means that vines which have the triangle) follows Paterson Slough, been irrigated post-harvest will have According to an excerpt from History adequate access to water through the of Klickitat County 1 that was included Rock Creek, and the boundary of the trust lands held by the Yakima Nation. winter and thus will have a reduced risk in the petition, the origin of the name of frost or freeze injury to the roots. ‘‘The Burn’’ is uncertain. One theory is The petition states that the trust lands were not included in the proposed AVA Finally, the petition states that the silty that the Native Americans in the region loam soils of the proposed AVA are in would burn the prairie grasses in order due to their steeper slope angles and because tribal lands are excluded from the taxonomic order Mollisols, which to discourage or frighten away settlers, means they are relatively high in while another theory is that the Native commercial wine grape production. The eastern boundary of the proposed AVA organic matter and can provide Americans regularly burned the area to adequate nutrients to the vines, insure adequate grass for their horses in (the right edge of the triangle) largely follows the bed of Chapman Creek and particularly nitrogen. the spring. A third explanation is that The soils of the region due west of the the dry east winds that blow through the separates the proposed AVA from steeper regions with higher elevations. proposed The Burn of Columbia Valley region leave the farmers’ wheat fields AVA are the most similar to the soils of burned and shriveled. Regardless of the Distinguishing Features the proposed AVA, with Walla Walla derivation of the name, the petition According to the petition, the silt loam without cemented substratum states that the region of the proposed distinguishing features of the proposed comprising 41.55 percent of the soils. AVA has been referred to as ‘‘The Burn’’ The Burn of Columbia Valley AVA are However, 24.27 percent of the soils since at least the early 1900’s, when its soils, climate, and topography. found in the region to the west are not mail destined for the area carried the found within the proposed AVA, designation ‘‘The Burn.’’ Soils including the Cheviot–Tronsen The petition included evidence that The petition states that there are 32 complex, the Goodnoe–Swalecreek– the name ‘‘The Burn’’ continues to be soil series found within the proposed Horseflat complex, and Asotin silt loam. used to describe the region of the The Burn of Columbia Valley AVA, To the east and northeast of the proposed AVA into modern times. For although approximately 80 percent of proposed AVA, only 8.39 percent of the example, the 1965 Goodnoe Hills and land contains the 9 types of soil that the 1971 Sundale, NW. U.S.G.S. 2 https://viewer.nationalmap.gov/advanced- dominate the proposed AVA. Instead, topographic maps both label the region viewer. the region contains sizeable amounts of 3 http://science.halleyhosting.com/nature/ soil that are not present within the 1 May, Peter. History of Klickitat County. bloomtime/egorge/11/19.html. Goldendale, WA: Klickitat Historical Society, 1982, 4 http://www.us-places.com/Washington/ proposed AVA, including the Renslow– p. 92. Klickitat-County.htm. Ralls–Wipple complex, Van Nostern silt

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loam, and Van Nostern–Bakeoven 12.54 percent of the region. Soils found precipitation amounts. The climate complex. To the south of the proposed in the region but not in the proposed information was developed from the AVA, only 14.60 percent of the soils are AVA include Colockum–Cheviot weather records from 1981–2010 from from the 9 series and complexes that are complex, Swalecreek–Rockly complex, the Western Regional Climate Center.6 most prevalent within the proposed and Goldendale silt loam. The petition included information on AVA. Soils present in the region to the the minimum, maximum, and average south which are not present within the Climate proposed AVA include Ritzville silt The proposed The Burn of Columbia annual GDD accumulations for the loam, Willis silt loam, and Roloff–Rock Valley AVA petition included proposed AVA and the surrounding outcrop complex. To the northwest of information on the climate of the regions for the period of record. The the proposed AVA, the 9 soils that proposed AVA, including growing GDD information is compiled in the dominate the proposed AVA cover only degree day 5 (GDD) accumulations and following table.

TABLE 2—ANNUAL GDD ACCUMULATIONS

Region Average Minimum Maximum

Proposed AVA ...... 2,763 2,405 3,249 East-northeast ...... 2,414 1,723 3,298 South ...... 2,768 2,464 3,305 West ...... 2,570 1,766 3,191 Northwest ...... 2,178 1,570 2,995

The proposed AVA has higher average warmer than most of the surrounding The petition included information on and minimum GDD accumulations than regions. The petition shows that GDD the minimum, maximum, and average each of the surrounding regions except accumulations within the proposed annual precipitation amounts for the the region to the south, and a maximum AVA favor the production of grape proposed AVA and the surrounding GDD accumulation that is greater than varietals that have higher heat unit regions for the period of record. The two of the surrounding regions. The requirements, including Cabernet precipitation information is compiled in petition states that the higher average Sauvignon and Syrah, which are the two the following table. GDD accumulations within the most commonly grown grape varietals proposed AVA indicate a climate that is in the proposed AVA.

TABLE 3—ANNUAL PRECIPITATION AMOUNTS IN INCHES

Region Average Minimum Maximum

Proposed AVA ...... 8.76 6.65 10.44 East-northeast ...... 10.23 6.80 11.63 South ...... 9.39 6.67 10.38 West ...... 9.81 7.03 12.53 Northwest ...... 11.58 10.45 12.69

The proposed The Burn of Columbia percent. The proposed AVA has a large petition states that the regions to the Valley AVA has average, minimum, and contiguous expanse of land with south and east-northeast have maximum annual precipitation amounts easterly, southeasterly, and southern predominately southeasterly aspects, that are lower than those of each of the aspects. The petition also provided similar to those of the proposed AVA. surrounding regions, except that the information about the average, However, the petition states that the region to the south has a lower maximum, and minimum elevations of proposed AVA has a larger contiguous maximum annual precipitation amount. the proposed AVA and the surrounding region with a southeasterly aspect. The petition states that the low rainfall regions. However, the petition did not The petition states that the gentle amounts mean that vineyards in the adequately describe the specific effects slopes of the proposed AVA are suitable proposed AVA need supplemental of elevation on viticulture, so TTB for mechanical cultivation of vineyards, irrigation. However, the petition notes cannot consider elevation to be a yet are steep enough to avoid the that because of the high water holding distinguishing topographic feature of pooling of cold air that could damage capacity of the soils of the proposed the proposed AVA. grapes. The southeasterly aspect of the AVA, vines remain adequately When compared to the proposed proposed AVA allows excellent sunlight hydrated. AVA, each of the surrounding regions exposure for vineyards. has higher average slope angles with the Topography exception of the region to the south, Summary of Distinguishing Features The proposed AVA is located on which has a lower average slope angle. The following table summarizes the gently sloping bench lands above the The regions to the west and northwest distinguishing features of the proposed Columbia River. The average slope angle of the proposed AVA have The Burn of Columbia Valley AVA and within the proposed AVA is 7.27 predominately southerly aspects. The the surrounding regions.

5 See Albert J. Winkler et al., General Viticulture regions are defined as follows: Region I = less than III = 3,001–3,500 GDDs; Region IV = 3,501–4,000 (Berkeley: University of California Press, 2nd. ed. 2,500 GDDs; Region II = 2,501–3,000 GDDs; Region GDDs; Region V = greater than 4,000 GDDs. 1974), pages 61–64. In the Winkler scale, the GDD 6 https://wrcc.dri.edu.

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TABLE 4—SUMMARY OF DISTINGUISHING FEATURES

Region Soils Climate Topography

Proposed The Burn of Silty loam soils including Walla Average annual GDD accumulations of Gently sloping bench lands with Columbia Valley AVA. Walla silt loam without ce- 2,763, minimum annual GDD accumula- average slope angle of 7.27 mented substratum, relatively tions of 2,405, maximum annual GDD ac- percent and large contiguous high organic material, high cumulations of 3,249; average annual pre- expanse of land with easterly, water holding capacity. cipitation of 8.76 inches, minimum annual southeasterly, and southern as- precipitation of 6.65 inches, and maximum pects. annual precipitation of 10.44 inches. East-northeast ...... Sizeable amount of soils that are Lower average and minimum annual GDD Higher slope angles, predomi- not present in proposed AVA. accumulation; Higher maximum annual nately southeasterly slope as- GDD accumulations; Higher average, min- pects. imum, and maximum annual precipitation amounts. South ...... Sizeable amount of soils that are Higher average, minimum, and maximum an- Lower slope angles, predomi- not present in proposed AVA. nual GDD accumulations; Higher average nately southeasterly slope as- and minimum annual precipitation amounts; pects. Lower maximum annual precipitation amounts. West ...... Silty loam soils including Walla Lower average, minimum, and maximum an- Higher slope angles, predomi- Walla silt loam without ce- nual GDD accumulations; Higher average, nately southerly slope aspects. mented substratum, but with minimum, and maximum annual precipita- soils not found in proposed tion amounts. AVA. Northwest ...... Sizeable amount of soils that are Lower average, minimum, and maximum an- Higher slope angles, predomi- not present in proposed AVA. nual GDD accumulations; Higher average, nately southerly slope aspects. minimum, and maximum annual precipita- tion amounts.

Comparison of the Proposed The Burn TTB Determination label is not in compliance and the of Columbia Valley AVA to the Existing TTB concludes that the petition to bottler must change the brand name and Columbia Valley AVA establish the 16,870-acre ‘‘The Burn of obtain approval of a new label. Columbia Valley’’ AVA merits Similarly, if the AVA name appears in The Columbia Valley AVA was consideration and public comment, as another reference on the label in a established by T.D. ATF–190, which invited in this document. misleading manner, the bottler would was published in the Federal Register have to obtain approval of a new label. on November 13, 1984 (49 FR 44895). Boundary Description Different rules apply if a wine has a T.D. ATF–190 describes the Columbia See the narrative boundary brand name containing an AVA name Valley AVA as a large, treeless basin descriptions of the petitioned-for AVA that was used as a brand name on a surrounding the Yakima, Snake, and in the proposed regulatory text label approved before July 7, 1986. See Columbia Rivers. Growing Degree Day published at the end of this document. § 4.39(i)(2) of the TTB regulations (27 accumulations within the Columbia Maps CFR 4.39(i)(2)) for details. Valley AVA range from 2,000 to 3,000, The petitioner provided the required If TTB establishes this proposed AVA, and annual precipitation amounts are its name, ‘‘The Burn of Columbia between 6 and 22 inches. Elevations maps, and they are listed below in the proposed regulatory text. You may also Valley,’’ will be recognized as a name of within the Columbia Valley AVA are viticultural significance under generally below 2,000 feet. view the proposed The Burn of Columbia Valley AVA boundary on the § 4.39(i)(3) of the TTB regulations (27 The proposed The Burn of Columbia AVA Map Explorer on the TTB website, CFR 4.39(i)(3)). The text of the proposed Valley AVA shares some of the general at https://www.ttb.gov/wine/ava-map- regulation clarifies this point. viticultural features of the larger explorer. Consequently, wine bottlers using ‘‘The Columbia Valley AVA. For instance, the Burn of Columbia Valley’’ in a brand average annual rainfall amounts and Impact on Current Wine Labels name, including a trademark, or in elevation within the proposed AVA are Part 4 of the TTB regulations prohibits another label reference as to the origin within the range of those features for the any label reference on a wine that of the wine, would have to ensure that Columbia Valley AVA. However, the indicates or implies an origin other than the product is eligible to use the proposed AVA can accumulate over the wine’s true place of origin. For a viticultural area’s name ‘‘The Burn of 3,000 GDDs annually, indicating a wine to be labeled with an AVA name Columbia Valley.’’ TTB is not proposing to designate ‘‘The Burn,’’ standing climate that is slightly warmer than or with a brand name that includes an alone, as a term of viticultural most of the rest of the Columbia Valley AVA name, at least 85 percent of the significance because the term ‘‘The AVA. Additionally, because the wine must be derived from grapes grown within the area represented by Burn’’ is used to refer to multiple areas proposed The Burn of Columbia Valley that name, and the wine must meet the in the United States. Therefore, wine AVA is much smaller than the Columbia other conditions listed in § 4.25(e)(3) of bottlers using ‘‘The Burn,’’ standing Valley AVA, the proposed AVA has a the TTB regulations (27 CFR 4.25(e)(3)). alone, in a brand name or in another greater uniformity of characteristics If the wine is not eligible for labeling label reference on their wines would not within its boundaries. with an AVA name and that name be affected by the establishment of this appears in the brand name, then the proposed AVA.

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The approval of the proposed The Submitting Comments and subject to disclosure. Do not Burn of Columbia Valley AVA would You may submit comments on this enclose any material in your comments not affect any existing AVA, and any proposal by using one of the following that you consider to be confidential or bottlers using ‘‘Columbia Valley’’ as an three methods: inappropriate for public disclosure. appellation of origin in a brand name for • Federal e-Rulemaking Portal: You Public Disclosure wines made from grapes grown within may send comments via the online the Columbia Valley AVA would not be comment form posted with this TTB will post, and you may view, affected by the establishment of this document within Docket No. TTB– copies of this document, selected new AVA. The establishment of the 2020–0005 on ‘‘Regulations.gov,’’ the supporting materials, and any online or proposed The Burn of Columbia Valley Federal e-rulemaking portal, at https:// mailed comments received about this AVA would allow vintners to use ‘‘The www.regulations.gov. A direct link to proposal within Docket No. TTB–2020– Burn of Columbia Valley’’ or ‘‘Columbia that docket is available under Notice 0005 on the Federal e-rulemaking Valley’’ as appellations of origin for No. 190 on the TTB website at https:// portal, Regulations.gov, at https:// wines made from grapes grown within www.ttb.gov/wine/wine- www.regulations.gov. A direct link to the proposed AVA, if the wines meet rulemaking.shtml. Supplemental files that docket is available on the TTB the eligibility requirements for the may be attached to comments submitted website at https://www.ttb.gov/wine/ appellation. via Regulations.gov. For complete wine-rulemaking.shtml under Notice No. 190. You may also reach the Public Participation instructions on how to use Regulations.gov, visit the site and click relevant docket through the Comments Invited on the ‘‘Help’’ tab at the top of the page. Regulations.gov search page at https:// TTB invites comments from interested • U.S. Mail: You may send comments www.regulations.gov. For instructions members of the public on whether TTB via postal mail to the Director, on how to use Regulations.gov, visit the should establish the proposed The Burn Regulations and Rulings Division, site and click on the ‘‘Help’’ tab at the of Columbia Valley AVA. TTB is Alcohol and Tobacco Tax and Trade top of the page. interested in receiving comments on the Bureau, 1310 G Street, NW, Box 12, All posted comments will display the sufficiency and accuracy of the name, Washington, DC 20005. commenter’s name, organization (if boundary, topography, and other • Hand Delivery/Courier: You may any), city, and State, and, in the case of required information submitted in hand-carry your comments or have them mailed comments, all address support of the AVA petition. In hand-carried to the Alcohol and information, including email addresses. addition, because the proposed The Tobacco Tax and Trade Bureau, 1310 G TTB may omit voluminous attachments Burn of Columbia Valley AVA would be Street NW, Suite 400, Washington, DC or material that it considers unsuitable within the existing Columbia Valley 20005. for posting. AVA, TTB is interested in comments on Please submit your comments by the You also may view copies of this whether the evidence submitted in the closing date shown above in this document, all related petitions, maps petition regarding the distinguishing document. Your comments must and other supporting materials, and any features of the proposed AVA reference Notice No. 190 and include electronic or mailed comments we sufficiently differentiates it from the your name and mailing address. Your receive about this proposal by existing AVA. TTB is also interested in comments also must be made in appointment at the TTB Public Reading comments on whether the geographic English, be legible, and be written in Room, 1310 G Street, NW, Suite 400, features of the proposed AVA are so language acceptable for public Washington, DC 20005. You may also distinguishable from the Columbia disclosure. We do not acknowledge obtain copies at 20 cents per 8.5- x 11- Valley AVA that the proposed The Burn receipt of comments, and we consider inch page. Contact TTB’s Regulations of Columbia Valley AVA should no all comments as originals. and Rulings Division at the above longer be part of the established AVA. Your comment must clearly state if address, by email using the web form at Please provide any available specific you are commenting on your own behalf https://www.ttb.gov/contact-rrd, or by information in support of your or on behalf of an organization, telephone at 202–453–1039, ext. 175, to comments. business, or other entity. If you are schedule an appointment or to request Because of the potential impact of the commenting on behalf of an copies of comments or other materials. establishment of the proposed The Burn organization, business, or other entity, Regulatory Flexibility Act of Columbia Valley AVA on wine labels your comment must include the entity’s that include the term ‘‘The Burn of name as well as your name and position TTB certifies that this proposed Columbia Valley’’ as discussed above title. If you comment via regulation, if adopted, would not have under Impact on Current Wine Labels, Regulations.gov, please enter the a significant economic impact on a TTB is particularly interested in entity’s name in the ‘‘Organization’’ substantial number of small entities. comments regarding whether there will blank of the online comment form. If The proposed regulation imposes no be a conflict between the proposed area you comment via postal mail, please new reporting, recordkeeping, or other names and currently used brand names. submit your entity’s comment on administrative requirement. Any benefit If a commenter believes that a conflict letterhead. derived from the use of a viticultural will arise, the comment should describe You may also write to the area name would be the result of a the nature of that conflict, including any Administrator before the comment proprietor’s efforts and consumer anticipated negative economic impact closing date to ask for a public hearing. acceptance of wines from that area. that approval of the proposed AVA will The Administrator reserves the right to Therefore, no regulatory flexibility have on an existing viticultural determine whether to hold a public analysis is required. enterprise. TTB is also interested in hearing. Executive Order 12866 receiving suggestions for ways to avoid conflicts, for example, by adopting a Confidentiality It has been determined that this modified or different name for the All submitted comments and proposed rule is not a significant proposed AVA. attachments are part of the public record regulatory action as defined by

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Executive Order 12866. Therefore, no (4) Proceed southeasterly document below for full details on how regulatory assessment is required. (downstream) along Chapman Creek, to comment on this proposal via crossing over the Dot map and onto the Regulations.gov, U.S. mail, or hand Drafting Information Sundale map, to the intersection of delivery, and for full details on how to Karen A. Thornton of the Regulations Chapman Creek with its southernmost view or obtain copies of this document, and Rulings Division drafted this tributary; then its supporting materials, and any document. (5) Proceed due east in a straight line comments related to this proposal. List of Subjects in 27 CFR Part 9 to the creek running through Old Lady FOR FURTHER INFORMATION CONTACT: Canyon; then Karen A. Thornton, Regulations and Wine. (6) Proceed southerly along the creek Rulings Division, Alcohol and Tobacco Proposed Regulatory Amendment to its intersection with the northern Tax and Trade Bureau, 1310 G Street For the reasons discussed in the shoreline of the Columbia River; then NW, Box 12, Washington, DC 20005; preamble, we propose to amend title 27, (7) Proceed westerly along the phone 202–453–1039, ext. 175. chapter I, part 9, Code of Federal northern shoreline of the Columbia SUPPLEMENTARY INFORMATION: River, returning to the beginning point. Regulations, as follows: Background on Viticultural Areas Signed: March 31, 2020. PART 9—AMERICAN VITICULTURAL Mary G. Ryan, TTB Authority AREAS Acting Administrator. Section 105(e) of the Federal Alcohol ■ 1. The authority citation for part 9 Approved: May 13, 2020. Administration Act (FAA Act), 27 continues to read as follows: Timothy E. Skud, U.S.C. 205(e), authorizes the Secretary of the Treasury to prescribe regulations Authority: 27 U.S.C. 205. Deputy Assistant Secretary (Tax, Trade, and Tariff Policy). for the labeling of wine, distilled spirits, Subpart C—Approved American [FR Doc. 2020–10921 Filed 5–26–20; 8:45 am] and malt beverages. The FAA Act provides that these regulations should, Viticultural Areas BILLING CODE 4810–31–P among other things, prohibit consumer ■ 2. Add § 9.llto read as follows: deception and the use of misleading statements on labels, and ensure that §9.ll The Burn of Columbia Valley. DEPARTMENT OF THE TREASURY labels provide the consumer with (a) Name. The name of the viticultural Alcohol and Tobacco Tax and Trade adequate information as to the identity area described in this section is ‘‘The Bureau and quality of the product. The Alcohol Burn of Columbia Valley’’. For purposes and Tobacco Tax and Trade Bureau of part 4 of this chapter, ‘‘The Burn of 27 CFR Part 9 (TTB) administers the FAA Act Columbia Valley’’ is a term of pursuant to section 1111(d) of the viticultural significance. [Docket No. TTB–2020–0004; Notice No. Homeland Security Act of 2002, (b) Approved maps. The four United 189] codified at 6 U.S.C. 531(d). The States Geological Survey (USGS) RIN 1513–AC57 Secretary has delegated various 1:24,000 scale topographic maps used to authorities through Treasury Order 120– determine the boundary of The Burn of Proposed Establishment of the White 01, dated December 10, 2013 Columbia Valley viticultural area are Bluffs Viticultural Area titled: (superseding Treasury Order 120–01, (1) Sundale NW, OR–WA, 2017; AGENCY: Alcohol and Tobacco Tax and dated January 24, 2003), to the TTB (2) Goodnoe Hills, WA, 2017; Trade Bureau, Treasury. Administrator to perform the functions and duties in the administration and (3) Dot, WA, 2017; and ACTION: Notice of proposed rulemaking. (4) Sundale, WA–OR, 2017. enforcement of these provisions. (c) Boundary. The Burn of Columbia SUMMARY: The Alcohol and Tobacco Tax Part 4 of the TTB regulations (27 CFR Valley viticultural area is located in and Trade Bureau (TTB) proposes to part 4) authorizes TTB to establish Klickitat County in Washington. The establish the 93,738-acre ‘‘White Bluffs’’ definitive viticultural areas and regulate boundary of The Burn of Columbia viticultural area in Franklin County, the use of their names as appellations of Valley viticultural area is as described Washington. The proposed AVA is origin on wine labels and in wine below: located entirely within the existing advertisements. Part 9 of the TTB (1) The beginning point is on the Columbia Valley AVA. TTB designates regulations (27 CFR part 9) sets forth Sundale NW map, at the intersection of viticultural areas to allow vintners to standards for the preparation and the Columbia River and the east shore better describe the origin of their wines submission of petitions for the of Paterson Slough. From the beginning and to allow consumers to better establishment or modification of point, proceed northerly along the east identify wines they may purchase. TTB American viticultural areas (AVAs) and shore of Paterson Slough to its junction invites comments on these proposals. lists the approved AVAs. with Rock Creek, and continuing Definition northeasterly along Rock Creek to its DATES: TTB must receive your intersection with the boundary of the comments on or before July 27, 2020. Section 4.25(e)(1)(i) of the TTB Yakima Nation Trust Land; then ADDRESSES: You may electronically regulations (27 CFR 4.25(e)(1)(i)) defines (2) Proceed south, then east, then submit comments to TTB on this a viticultural area for American wine as generally northeasterly along the proposal, and view copies of this a delimited grape-growing region having boundary of the Yakima Nation Trust document, its supporting materials, and distinguishing features, as described in Land, crossing onto the Goodnoe Hills any comments TTB receives on it within part 9 of the regulations, and a name map, to the intersection of the Trust Docket No. TTB–2020–0004 as posted and a delineated boundary, as Land boundary with Kelley Road; then on Regulations.gov (https:// established in part 9 of the regulations. (3) Proceed north in a straight line to www.regulations.gov), the Federal e- These designations allow vintners and the intersection with the main channel rulemaking portal. Please see the consumers to attribute a given quality, of Chapman Creek; then ‘‘Public Participation’’ section of this reputation, or other characteristic of a

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wine made from grapes grown in an area White Bluffs AVA are its topography, established Columbia Valley AVA along to its geographic origin. The geology, soils, and climate. the eastern bank of the Columbia River establishment of AVAs allows vintners and is shaped roughly like a mitten with Proposed White Bluffs AVA to describe more accurately the origin of the ‘‘thumb’’ pointing east. The their wines to consumers and helps Name Evidence proposed boundaries encompass a consumers to identify wines they may The proposed White Bluffs AVA takes plateau upon which the proposed AVA purchase. Establishment of an AVA is its name from a steep escarpment that is located. The northern, eastern, and neither an approval nor an endorsement lies along the eastern bank of the southern boundaries each primarily by TTB of the wine produced in that Columbia River and forms the western follow elevation contours that area. boundary of the proposed AVA. An approximate the escarpments that form the edges of the plateau. The western Requirements early reference to the region can be found in an 1893 U.S. Geological Survey boundary separates the proposed AVA Section 4.25(e)(2) of the TTB bulletin, which states, ‘‘The White from the Hanford Reach National regulations (27 CFR 4.25(e)(2)) outlines bluffs [sic] afford favorable ground for Monument and is formed by the east the procedure for proposing an AVA collecting fossil bones * * *.’’ 1 A 1917 bank of the Columbia River and the and provides that any interested party geological bulletin titled ‘‘Age of the boundary of the monument. may petition TTB to establish a grape- strata referred to as Ellensburg Distinguishing Features growing region as an AVA. Section 9.12 formation in the White Bluffs of the According to the petition, the of the TTB regulations (27 CFR 9.12) Columbia River’’ notes, ‘‘The White distinguishing features of the proposed prescribes standards for petitions for the Bluffs follow the river closely from a White Bluffs AVA are its topography, establishment or modification of AVAs. point ten or twelve miles north of Pasco geology, soils, and climate. Petitions to establish an AVA must to the northwestward for about thirty include the following: miles.’’ 2 A more recent geological Topography • Evidence that the area within the publication states, ‘‘The White Bluffs The proposed White Bluffs AVA is proposed AVA boundary is nationally line the north and east sides of the located on a broad plateau that rises, on or locally known by the AVA name Columbia River for about 30 miles along average, 200 feet above the surrounding specified in the petition; the Hanford Reach near Richland.’’ 3 • landscape. The Ringold and Koontz An explanation of the basis for The petition also included examples coulees divide the plateau into two defining the boundary of the proposed of use of the term ‘‘White Bluffs’’ by distinct areas that are capped by flat AVA; businesses and organizations within or surfaces known as Columbia Flat and • A narrative description of the serving the proposed AVA. For Owens Flat. The surface of the plateau features of the proposed AVA that affect example, the White Bluffs Quilt is described as being ‘‘remarkably even, viticulture, such as climate, geology, Museum, which is in Richland, excepting where interrupted by soils, physical features, and elevation, Washington, describes itself as ‘‘a occasional drainage courses that have that make the proposed AVA distinctive Regional Textile Arts Center, serving the cut below its level.’’ 6 Elevations within and distinguish it from adjacent areas Tri-Cities and the Mid-Columbia Basin,’’ the proposed AVA range from 700 feet outside the proposed AVA boundary; which includes the region of the in the coulees to approximately 1,200 • The appropriate United States proposed AVA. Claar Cellars Winery, feet in the northeastern section. The Geological Survey (USGS) map(s) which is located within the proposed majority of the proposed AVA has showing the location of the proposed AVA, has a vineyard called White Bluffs elevations between 800 and 1,000 feet. AVA, with the boundary of the Vineyard. The website of the By contrast, the surrounding regions proposed AVA clearly drawn thereon; Washington State Wine Commission are generally characterized by lower • An explanation showing the states that both the White Bluffs elevations. To the immediate north, the proposed AVA is sufficiently distinct Vineyard and Claar Cellars Winery are elevations drop slightly along the from an existing AVA so as to warrant located ‘‘north of Pasco, WA in the Wahluke Slope Habitat Management separate recognition, if the proposed White Bluffs area of the Columbia Area before rising into the Saddle 4 AVA is to be established within, or Valley Appellation.’’ Finally, the Mountains. To the east, elevations slope overlapping, an existing AVA; and petition notes that an endangered plant downward into the Esquatzel Coulee. To • A detailed narrative description of that grows primarily within and around the south, elevations descend into the the proposed AVA is named the White Pasco Basin. To the west, elevations the proposed AVA boundary based on 5 USGS map markings. Bluffs bladderpod. slope down to the Columbia River. Boundary Evidence According to the petition, the Petition To Establish the White Bluffs topography of the proposed AVA has an AVA The proposed White Bluffs AVA is effect on viticulture. The plateau’s located in the central portion of the TTB received a petition from Kevin escarpments provide gently sloping vineyard sites with a southern Pogue, a college geology professor, 1 Russell, I.C., A geological reconnaissance in proposing to establish the ‘‘White central Washington: U.S. Geological Survey component. Sites with a southern aspect Bluffs’’ AVA. The petition was Bulletin, p. 108 (1893). absorb more solar energy per unit area submitted on behalf of local vineyard 2 Merriam, J.C., and Buwalda, J.P., Age of the than other sites, which helps warm the owners and winemakers. The proposed strata referred to as Ellensburg formation in the soil and promote an earlier onset of bud White Bluffs of the Columbia River: University of break, flowering, veraison, and harvest. AVA is located in Franklin County, California Publications Bulletin of the Department Washington, and is entirely within the of Geology, v. 10, p. 255–266 (1917). Additionally, vineyards planted on the existing Columbia Valley AVA (27 CFR 3 Bjornstad, B., On the trail of the Ice Age floods, plateau are above colder air that pools 9.74). Within the 93,738-acre proposed a geological guide to the Mid-Columbia Basin: AVA, there are 9 commercial vineyards, Keokee Books, Sandpoint, ID, p.308 (2006). 6 Merriam, J.C., and Buwalda, J.P., 1917, Age of 4 https://www.washingtonwine.org/vineyards/ the strata referred to as Ellensburg formation in the covering a total of approximately 1,127 white-bluffs-vineyard. White Bluffs of the Columbia River: University of acres, along with 1 winery. The 5 https://ecos.fws.gov/ecp0/profile/speciesProfile? California Publications Bulletin of the Department distinguishing features of the proposed sld=5390. of Geology, v. 10, p. 255–266.

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on the floor of the surrounding lower entirely absent in the surrounding due to their lower elevations. elevations at night. Vineyards above the regions, leaving the Columbia River Additionally, the soils surrounding the pooling cold air have a longer growing basalt exposed. Unlike vines planted in proposed AVA are much more likely to season and are at less risk of damage the proposed AVA, vines planted in the consist of coarse-grained gravel rather from late spring and early fall frost and surrounding region are able to than fine sand and silt, since they were freeze events. encounter the basalt bedrock and are deposited by fast-flowing flood currents therefore exposed to a suite of very instead of by wind. Geology different minerals, including olivine Because of the thinness of the soils of The proposed White Bluffs AVA is and plagioclase feldspar. the proposed AVA, the roots of underlain by a thick layer of grapevines are able to reach the Ringold Soils sedimentary rocks called the Ringold Formation, which has a high clay Formation. The sediments that comprise The soils of the proposed White Bluffs content. High clay content allows the the Ringold Formation were deposited AVA are developed in wind-deposited soils to release water more slowly than in lakes and rivers between 8.5 and 3.4 silt and fine sand overlying sediment sandier soils, allowing vines to be less million years ago. The upper part of the deposited by ice-age floods, which in stressed during dry conditions. Ringold Formation contains an erosion- turn overlies the Ringold Formation. resistant mineralized layer commonly Most of the ice-age flood sediment Climate referred to as caliche. This layer reaches deposited within the proposed AVA is According to the petition, the cooler depths of at least 15 feet and limits root a mixture of silt and sand that settled nighttime air flows away from the upper penetration and soil water holding out of suspension in glacial Lake Lewis. surface of the plateau of the proposed capacity. As a result, areas with thick The maximum elevation of Lake Lewis White Bluffs AVA and into the layers of caliche routinely undergo deep was approximately 1,250 feet, and thus surrounding lower elevations. As a ripping with bulldozers to break up the the entire proposed AVA was result, the proposed AVA has a longer caliche before vineyards can be planted. submerged. The thickness of the flood growing season, which is characterized The Ringold Formation overlies sediment gradually increases with by an earlier last-frost date and later Columbia River basalt. decreasing elevation, since there were first-frost date than the surrounding The underlying rock formations of the multiple ice-age floods of varying regions. The following table summarizes regions surrounding the proposed White intensity and lower elevations were the climate data provided in the Bluffs AVA also consist of Columbia flooded more frequently. Thus, the soil petition. Data was not available for the River basalt. However, the Ringold depths of the regions surrounding the region to the west, within the Hanford Formation is generally much thinner or proposed AVA are likely to be thicker Reach National Monument.

TABLE—CLIMATE DATA OF THE PROPOSED AVA AND SURROUNDING REGIONS 7

Average Weather station Average last-frost date Average first-frost date growing season (direction from proposed AVA) length in days

Pasco North (within) ...... March 21 ...... November 8 ...... 229 KWAELTOP3 (within) ...... March 15 ...... November 16 ...... 246 Radar Hill (north) ...... April 15 ...... October 29 ...... 196 Basin City (north) ...... April 4 ...... October 28 ...... 204 Connell Bench (northeast) ...... May 2 ...... October 15 ...... 164 Mesa SE (east) ...... April 26 ...... October 14 ...... 169 Juniper (southeast) ...... April 19 ...... October 17 ...... 181 Tri-Cities (south) ...... April 17 ...... October 25 ...... 191

The petition illustrates that the early which overlies Columbia River basalt. entirely absent. Finally, the surrounding last-frost dates mean that the proposed Soils in the proposed AVA are regions have significantly shorter White Bluffs AVA is less prone to spring comprised of thin layers of wind- growing seasons, with later last-frost frosts that can damage the vines after deposited silt and fine sand overlying dates and earlier first-frost dates. bud break than the surrounding regions. sediment deposited by ice-age floods. Comparison of the Proposed White Additionally, a later first-frost date The proposed AVA has a long growing Bluffs AVA to the Existing Columbia means that the proposed AVA is less season of between 229 and 246 days, Valley AVA likely to experience fall frosts that halt with an average last-frost date in mid- the ripening process and delay harvest. March and an average first-frost date in T.D. ATF–190, published in the early-to-mid November. Federal Register on November 13, 1984 Summary of Distinguishing Features (49 FR 44895), established the Columbia The proposed White Bluffs AVA is By contrast, the surrounding regions Valley AVA. It describes the Columbia located on a large plateau that rises, on are at lower elevations than the Valley AVA as a large, treeless basin average, 200 feet above the surrounding proposed AVA. As a result, the soils are surrounding the Yakima, Snake, and regions. The geology is characterized by thicker and are likely to have more Columbia Rivers. Growing season a thick layer of clay, silt, sand, and coarse-grained gravel because those lengths within the Columbia Valley gravel called the Ringold Formation, regions were more frequently covered AVA are over 150 days, and annual by ice-age flooding. The geology of the precipitation amounts are less than 15 7 Data from Pasco, Pasco North, Radar Hill, surrounding regions features Columbia inches. Elevations within the Columbia Juniper, Mesa SE, Connell Bench, Basin City, and River basalt, but the Ringold Formation Tri-Cities weather stations were collected from Valley AVA are below 2,000 feet. 2008–2016. Data from the KWAELTOP3 station was is either significantly thinner than The proposed White Bluffs AVA only available from 2014–2016. within the proposed AVA or it is shares some of the general viticultural

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features of the larger Columbia Valley misleading manner, the bottler would the nature of that conflict, including any AVA. For instance, the proposed AVA have to obtain approval of a new label. anticipated negative economic impact has elevations below 2,000 feet and both Different rules apply if a wine has a that approval of the proposed AVA will have geologies that consist of Columbia brand name containing an AVA name have on an existing viticultural River basalt. The petition states that the that was used as a brand name on a enterprise. TTB is also interested in proposed AVA also has annual label approved before July 7, 1986. See receiving suggestions for ways to avoid precipitation amounts of less than 15 27 CFR 4.39(i)(2) for details. conflicts, for example, by adopting a inches, although no data was provided If TTB establishes this proposed AVA, modified or different name for the to support this claim. its name, ‘‘White Bluffs,’’ will be proposed AVA. The proposed AVA, however, also has recognized as a name of viticultural characteristics that distinguish it from significance under § 4.39(i)(3) of the Submitting Comments the larger Columbia Valley AVA. Most TTB regulations (27 CFR 4.39(i)(3)). The You may submit comments on this notably, the proposed AVA is an text of the proposed regulation clarifies proposal by using one of the following elevated plateau, rather than a broad this point. Consequently, wine bottlers three methods: plain. Although the elevations within using ‘‘White Bluffs’’ in a brand name, • Federal e-Rulemaking Portal: You the proposed AVA are within the range including a trademark, or in another may send comments via the online of elevations found within the Columbia label reference as to the origin of the comment form posted with this Valley AVA, the proposed AVA’s wine, would have to ensure that the document within Docket No. TTB– elevations are significantly higher than product is eligible to use the AVA name 2020–0004 on ‘‘Regulations.gov,’’ the those of the immediately surrounding as an appellation of origin if this Federal e-rulemaking portal, at https:// regions. Finally, due to the higher proposed rule is adopted as a final rule. www.regulations.gov. A direct link to elevations, soil depths within the If approved, the establishment of the that docket is available under Notice proposed White Bluffs AVA are proposed White Bluffs AVA would No. 189 on the TTB website at https:// shallower than the soil depths found allow vintners to use ‘‘White Bluffs’’ or www.ttb.gov/wine/wine- within the majority of the Columbia ‘‘Columbia Valley’’ as appellations of rulemaking.shtml. Supplemental files Valley AVA, which was more frequently origin for wines made from grapes may be attached to comments submitted inundated by ice-age floods. grown within the proposed AVA, if the via Regulations.gov. For complete wines meet the eligibility requirements TTB Determination instructions on how to use for the appellation. Regulations.gov, visit the site and click TTB concludes that the petition to Public Participation on the ‘‘Help’’ tab at the top of the page. establish the 93,738-acre ‘‘White Bluffs’’ • U.S. Mail: You may send comments AVA merits consideration and public Comments Invited via postal mail to the Director, comment, as invited in this document. TTB invites comments from interested Regulations and Rulings Division, Boundary Description members of the public on whether TTB Alcohol and Tobacco Tax and Trade Bureau, 1310 G Street, NW, Box 12, See the narrative boundary should establish the proposed White Washington, DC 20005. descriptions of the petitioned-for AVA Bluffs AVA. TTB is interested in • Hand Delivery/Courier: You may in the proposed regulatory text receiving comments on the sufficiency hand-carry your comments or have them published at the end of this document. and accuracy of the name, boundary, topography, and other required hand-carried to the Alcohol and Maps information submitted in support of the Tobacco Tax and Trade Bureau, 1310 G The petitioner provided the required AVA petition. In addition, because the Street NW, Suite 400, Washington, DC maps, and they are listed below in the proposed White Bluffs AVA would be 20005. proposed regulatory text. You may also within the existing Columbia Valley Please submit your comments by the view the proposed White Bluffs AVA AVA, TTB is interested in comments on closing date shown above in this boundary on the AVA Map Explorer on whether the evidence submitted in the document. Your comments must the TTB website, at https://www.ttb.gov/ petition regarding the distinguishing reference Notice No. 189 and include wine/ava-map-explorer. features of the proposed AVA your name and mailing address. Your sufficiently differentiates it from the comments also must be made in Impact on Current Wine Labels existing AVA. TTB is also interested in English, be legible, and be written in Part 4 of the TTB regulations prohibits comments on whether the geographic language acceptable for public any label reference on a wine that features of the proposed AVA are so disclosure. We do not acknowledge indicates or implies an origin other than distinguishable from the Columbia receipt of comments, and we consider the wine’s true place of origin. For a Valley AVA that the proposed White all comments as originals. wine to be labeled with an AVA name Bluffs AVA should not be part of the Your comment must clearly state if or with a brand name that includes an established AVA. Please provide any you are commenting on your own behalf AVA name, at least 85 percent of the available specific information in or on behalf of an organization, wine must be derived from grapes support of your comments. business, or other entity. If you are grown within the area represented by Because of the potential impact of the commenting on behalf of an that name, and the wine must meet the establishment of the proposed White organization, business, or other entity, other conditions listed in 27 CFR Bluffs AVA on wine labels that include your comment must include the entity’s 4.25(e)(3). If the wine is not eligible for the term ‘‘White Bluffs’’ as discussed name as well as your name and position labeling with an AVA name and that above under Impact on Current Wine title. If you comment via name appears in the brand name, then Labels, TTB is particularly interested in Regulations.gov, please enter the the label is not in compliance and the comments regarding whether there will entity’s name in the ‘‘Organization’’ bottler must change the brand name and be a conflict between the proposed area blank of the online comment form. If obtain approval of a new label. names and currently used brand names. you comment via postal mail, please Similarly, if the AVA name appears in If a commenter believes that a conflict submit your entity’s comment on another reference on the label in a will arise, the comment should describe letterhead.

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You may also write to the proprietor’s efforts and consumer point, proceed north along Columbia Administrator before the comment acceptance of wines from that area. River Road, crossing onto the Wooded closing date to ask for a public hearing. Therefore, no regulatory flexibility Island map, to the Potholes Canal; then The Administrator reserves the right to analysis is required. (2) Proceed west along the Potholes determine whether to hold a public Canal for 150 feet to its intersection Executive Order 12866 hearing. with the shoreline of the Columbia This proposed rule is not a significant River; then Confidentiality regulatory action as defined by (3) Proceed north along the Columbia All submitted comments and Executive Order 12866. Therefore, it River shoreline, crossing onto the attachments are part of the public record requires no regulatory assessment. Savage Island map, to the intersection of and subject to disclosure. Do not the shoreline with the Wahluke Slope Drafting Information enclose any material in your comments Habitat Management boundary on that you consider to be confidential or Karen A. Thornton of the Regulations Ringold Flat; then inappropriate for public disclosure. and Rulings Division drafted this (4) Proceed east, then generally document. Public Disclosure northwesterly, along the Wahluke Slope List of Subjects in 27 CFR Part 9 Habitat Management boundary to its TTB will post, and you may view, intersection with the 950-foot elevation copies of this document, selected Wine. contour along the western boundary of supporting materials, and any online or Proposed Regulatory Amendment section 16, T13N/R29E; then mailed comments received about this (5) Proceed easterly, then generally proposal within Docket No. TTB–2020– For the reasons discussed in the northeasterly, along the 950-foot 0004 on the Federal e-rulemaking preamble, we propose to amend title 27, elevation contour, passing over the portal, Regulations.gov, at https:// chapter I, part 9, Code of Federal Hanford NE map and onto the Eagle www.regulations.gov. A direct link to Regulations, as follows: Lakes map, to the intersection of the that docket is available on the TTB elevation contour with an unimproved PART 9—AMERICAN VITICULTURAL website at https://www.ttb.gov/wine/ road in the southeast corner of section AREAS wine-rulemaking.shtml under Notice 32, T14N/T29E; then No. 189. You may also reach the ■ 1. The authority citation for part 9 (6) Proceed east along the unimproved relevant docket through the continues to read as follows: road for 100 feet to its intersection with Regulations.gov search page at https:// an unnamed light-duty improved road www.regulations.gov. For instructions Authority: 27 U.S.C. 205. known locally as Albany Road; then on how to use Regulations.gov, visit the (7) Proceed south along Albany Road, Subpart C—Approved American site and click on the ‘‘Help’’ tab. crossing onto the Basin City map, to the Viticultural Areas All posted comments will display the road’s intersection with an unnamed commenter’s name, organization (if ■ 2. Add § 9.ll to read as follows: improved light-duty road known locally any), city, and State, and, in the case of as Basin Hill Road along the southern __ mailed comments, all address §9. White Bluffs. boundary of section 21, T13N/R29E; information, including email addresses. (a) Name. The name of the viticultural then TTB may omit voluminous attachments area described in this section is ‘‘White (8) Proceed south in a straight line for or material that it considers unsuitable Bluffs’’. For purposes of part 4 of this 2 miles to an improved light-duty road for posting. chapter, ‘‘White Bluffs’’ is a term of known locally as W. Klamath Road; You also may view copies of this viticultural significance. then document, all related petitions, maps (b) Approved maps. The 10 United (9) Proceed east along W. Klamath and other supporting materials, and any States Geological Survey (USGS) Road, crossing onto the Mesa West map, electronic or mailed comments we 1:24,000 scale topographic maps used to to the road’s intersection with another receive about this proposal by determine the boundary of the improved light-duty road known locally appointment at the TTB Information viticultural area are titled: as Drummond Road; then Resource Center, 1310 G Street NW, (1) Hanford, NE, Washington, 1986; (10) Proceed north along Drummond Suite 400, Washington, DC 20005. You (2) Mesa West, Washington, 1986; Road for 0.75 mile to its intersection may also obtain copies at 20 cents per (3) Wooded Island, Washington, 1992; with a railroad; then 8.5- x 11-inch page. Contact TTB’s (4) Matthews Corner, Washington, (11) Proceed easterly along the Regulations and Rulings Division at the 1992; railroad to its intersection with an above address, by email at https:// (5) Basin City, Washington, 1986; improved light-duty road known locally www.ttb.gov/webforms/contact_ (6) Eltopia, Washington, 1992; as Langford Road in the northeastern RRD.shtm, or by telephone at 202–453– (7) Eagle Lakes, Washington, 1986; corner of section 4, T12N/R30E; then 1039, ext. 175, to schedule an (8) Savage Island, Washington, 1986; (12) Proceed south along Langford appointment or to request copies of (9) Richland, Washington, 1992; and Road for 0.5 mile to its intersection with comments or other materials. (10) Columbia Point, Washington, the 800-foot elevation contour; then 1992. (13) Proceed southwesterly along the Regulatory Flexibility Act (c) Boundary. The White Bluffs 800-foot elevation contour, crossing TTB certifies that this proposed viticultural area is located in Franklin onto the Eltopia map, to the contour’s regulation, if adopted, would not have County in Washington. The boundary of intersection with Eltopia West Road; a significant economic impact on a the White Bluffs viticultural area is as then substantial number of small entities. described below: (14) Proceed east along Eltopia West The proposed regulation imposes no (1) The beginning point is on the Road to its intersection with the 700- new reporting, recordkeeping, or other Richland map at the intersection of foot elevation contour; then administrative requirement. Any benefit Columbia River Road and an unnamed (15) Proceed southerly, then northerly derived from the use of a viticultural secondary highway known locally as along the 700-foot elevation contour, area name would be the result of a Sagemoor Road. From the beginning circling Jackass Mountain, to the

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contour’s intersection with Dogwood (‘‘CBM’’) proceedings before the Patent Ninth Floor, 600 Dulany Street, Road; then Trial and Appeal Board (‘‘PTAB’’ or Alexandria, Virginia. Comments also (16) Proceed west along Dogwood ‘‘Board’’) in accordance with SAS will be available for viewing via the Road for 1.1 mile, crossing onto the Institute Inc. v. Iancu (‘‘SAS’’). Office’s website, https://go.usa.gov/ Matthews Corner map, to the road’s Consistent with SAS, the Office also xXXFW, and on the Federal intersection with the 750-foot elevation proposes changes to the rules of practice eRulemaking Portal. Because comments contour; then for instituting a review on all grounds will be made available for public (17) Proceed southwesterly along the of unpatentability for the challenged inspection, information that the 750-foot elevation contour to its claims that are asserted in a petition. submitter does not desire to be made intersection with Taylor Flats Road; Additionally, the Office proposes public, such as an address or phone then changes to the rules to conform to the number, should not be included. (18) Proceed south along Taylor Flats current standard practice of providing FOR FURTHER INFORMATION CONTACT: Road, crossing onto the Columbia Point sur-replies to principal briefs and Michael Tierney, Vice Chief map, to the road’s intersection with providing that a patent owner response Administrative Patent Judge, by Birch Road; then and reply may respond to a decision on telephone at (571) 272–9797. (19) Proceed west along Birch Road institution. The Office further proposes SUPPLEMENTARY INFORMATION: for 1 mile to its intersection with Alder a change to eliminate the presumption Road; then that a genuine issue of material fact Executive Summary (20) Proceed south along Alder Road created by the patent owner’s Purpose: The proposed rules would for 0.7 mile to its intersection with the testimonial evidence filed with a amend the rules of practice for IPR, 550-foot elevation contour; then preliminary response will be viewed in PGR, and CBM proceedings that (21) Proceed westerly along the 550- the light most favorable to the petitioner implemented provisions of the Leahy- foot elevation contour to its intersection for purposes of deciding whether to Smith America Invents Act (‘‘AIA’’) with Sagemoor Road; then institute a review. providing for trials before the Office. (22) Proceed westerly along Sagemoor DATES: Comment Deadline Date: The The U.S. Supreme Court held in SAS Road for 0.7 mile, crossing onto the Office solicits comments from the that a decision to institute an IPR under Richland map and returning to the public on this proposed rulemaking. 35 U.S.C. 314 may not institute on fewer beginning point. Written comments must be received on than all claims challenged in a petition. Signed: March 4, 2020. or before June 26, 2020 to ensure See SAS Institute Inc. v. Iancu, 138 S. Mary G. Ryan, consideration. Ct. 1348 (2018). The Court held that the Acting Administrator. ADDRESSES: Comments should be sent Office only has the discretion to institute on all of the claims challenged Approved: May 13, 2020. by email addressed to: [email protected]. in the petition or to deny the petition. Timothy E. Skud, Comments may also be sent via the Previously, the Board exercised Deputy Assistant Secretary (Tax, Trade, and Federal eRulemaking Portal at http:// discretion to institute an IPR, PGR, or Tariff Policy). www.regulations.gov. See the Federal CBM on all or some of the challenged [FR Doc. 2020–10920 Filed 5–26–20; 8:45 am] eRulemaking Portal website for claims and on all or some of the grounds BILLING CODE 4810–31–P additional instructions on providing of unpatentability asserted in a petition. comments via the Federal eRulemaking For example, the Board exercised Portal. All comments submitted directly discretion to authorize a review to DEPARTMENT OF COMMERCE to the USPTO or provided on the proceed on only those claims and Federal eRulemaking Portal should grounds for which the required United States Patent and Trademark include the docket number (PTO–P– threshold had been met, thus narrowing Office 2019–0024). the issues for efficiency in conducting a Comments may also be submitted by proceeding. 37 CFR Part 42 postal mail addressed to: Mail Stop In light of SAS, the Office provided [Docket No. PTO–P–2019–0024] Patent Board, Director of the United guidance that, if the Board institutes a States Patent and Trademark Office, trial under 35 U.S.C. 314 or 324, the RIN 0651–AD40 P.O. Box 1450, Alexandria, VA 22313– Board will institute on all claims and all grounds included in a petition of an PTAB Rules of Practice for Instituting 1450, marked to the attention of Michael IPR, PGR, or CBM. To implement this on All Challenged Patent Claims and Tierney, Vice Chief Administrative practice in the regulation, the first All Grounds and Eliminating the Patent Judge. proposed change would amend the rules Presumption at Institution Favoring Although comments may be of practice for instituting an IPR, PGR, Petitioner as to Testimonial Evidence submitted by postal mail, the Office prefers to receive comments by email to or CBM to require institution on all AGENCY: United States Patent and more easily share all comments with the challenged claims (and all of the Trademark Office, Department of public. The Office prefers the comments grounds) presented in a petition or on Commerce. to be submitted in plain text but also none. Under the amended rule, in all ACTION: Notice of proposed rulemaking. accepts comments submitted in pending IPR, PGR, and CBM searchable ADOBE® portable document proceedings before the Office, the Board SUMMARY: The United States Patent and format (PDF) or MICROSOFT WORD® would either institute review on all of Trademark Office (‘‘USPTO’’ or format. Comments not submitted the challenged claims and grounds of ‘‘Office’’) proposes changes to the rules electronically should be submitted on unpatentability presented in the petition of practice for instituting review on all paper in a format that accommodates or deny the petition. challenged claims or none in inter digital scanning into ADOBE® PDF. The second proposed change would partes review (‘‘IPR’’), post-grant review The comments will be available for amend the rules of practice to conform (‘‘PGR’’), and the transitional program public inspection at the Patent Trial and the rules to certain standard practices for covered business method patents Appeal Board, located in Madison East, before the PTAB in IPR, PGR, and CBM

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proceedings. Specifically, in this notice discretion to institute an IPR, PGR, or arising from SAS, the petitioner is of proposed rulemaking, the Office CBM on all or some of the challenged permitted in its reply brief to address proposes to amend the rules to set forth claims and on all or some of the grounds issues discussed in the institution the briefing requirements of sur-replies of unpatentability asserted for each decision. Similarly, the patent owner is to principal briefs and to provide that a claim presented in a petition. For permitted to address the institution reply may respond to a decision on example, the Board exercised the decision in its response and sur-reply, if institution. discretion to authorize a review to necessary, to respond to the petitioner’s Finally, the Office proposes to amend proceed on only those claims and reply. However, the sur-reply may not the rules to eliminate the presumption grounds for which the required be accompanied by new evidence other in favor of the petitioner for a genuine threshold has been met, narrowing the than deposition transcripts of the cross- issue of material fact created by issues for efficiency. examination of any reply witness. Sur- testimonial evidence submitted with a The U.S. Supreme Court held in SAS, replies only respond to arguments made patent owner’s preliminary response however, that a decision to institute an in reply briefs, comment on reply when deciding whether to institute an IPR review under 35 U.S.C. 314 may not declaration testimony, or point to cross- IPR, PGR, or CBM review. As with all institute on fewer than all claims examination testimony. A sur-reply also other evidentiary questions at the challenged in a petition. The Court held may address the institution decision if institution phase, the Board will that the Office only has the discretion to necessary to respond to the petitioner’s consider the evidence to determine institute on all of the claims challenged reply. This sur-reply practice essentially whether the petitioner has met the in the petition or to deny the petition. replaces the previous practice of filing applicable standard for institution of the The Office posted guidance on the observations on cross-examination proceeding. Impact of SAS on AIA trial proceedings testimony. Costs and Benefits: This rulemaking is at https://www.uspto.gov/patents- In 2012, the Office also promulgated not economically significant under application-process/patent-trial-and- §§ 42.107(c) and 42.207(c), which Executive Order 12866 (Sept. 30, 1993). appeal-board/trials/guidance-impact- initially included a prohibition against Background sas-aia-trial. In light of SAS, the a patent owner filing new testimony guidance states that, if the Board evidence with its preliminary response. On September 16, 2011, the AIA was institutes a trial under 35 U.S.C. 314 or In particular, these rules stated: ‘‘No enacted into law (Pub. L. 112–29, 125 324, the Board will institute on all new testimonial evidence. The Stat. 284 (2011)), and within one year, claims and all grounds included in a preliminary response shall not present the Office implemented rules to govern petition of an IPR, PGR, or CBM. The new testimony evidence beyond that Office practice for AIA trials, including guidance provides that ‘‘the PTAB will already of record, except as authorized IPR, PGR, CBM, and derivation institute as to all claims or none,’’ and by the Board.’’ 37 CFR 42.107(c) and proceedings pursuant to 35 U.S.C. 135, ‘‘[a]t this time, if the PTAB institutes a 42.207(c) (2012). 316, and 326 and AIA 18(d)(2). See trial, the PTAB will institute on all In April 2016, after receiving Rules of Practice for Trials before the challenges raised in the petition.’’ Id. comments from the public and carefully Patent Trial and Appeal Board and Consistent with SAS and the Office’s reviewing them, the Office promulgated Judicial Review of Patent Trial and guidance, this proposed rulemaking a rule to allow new testimonial evidence Appeal Board Decisions, 77 FR 48612 would revise §§ 42.108(a) and 42.208(a) to be submitted with a patent owner’s (Aug. 14, 2012); Changes to Implement to provide for instituting an IPR, PGR, preliminary response. Amendments to Inter Partes Review Proceedings, Post- or CBM on all challenged claims or Rules of Practice for Trials Before the Grant Review Proceedings, and none. This proposed rulemaking would Patent Trial and Appeal Board, 81 FR Transitional Program for Covered also revise these rules for instituting a 18750 (April 1, 2016). The Office also Business Method Patents, 77 FR 48680 review on all of the grounds of amended the rules to provide a (Aug. 14, 2012); and Transitional unpatentability for the challenged presumption in favor of the petitioner Program for Covered Business Method claims that are presented in a petition. for a genuine issue of material fact Patents—Definitions of Covered In all pending IPR, PGR, and CBM created by such testimonial evidence Business Method Patent and proceedings before the Office, the Board solely for purposes of deciding whether Technological Invention, 77 FR 48734 would either institute on all of the to institute an IPR, PGR, or CBM review. (Aug. 14, 2012). Additionally, the Office challenged claims and on all grounds of Id. at 18755–57. published a Patent Trial Practice Guide unpatentability asserted for each claim Stakeholder feedback received in to advise the public on the general or deny the petition. party and amicus briefing as part of the framework of the regulations, including In addition, consistent with the Office Precedential Opinion Panel (POP) the structure and times for taking action Patent Trial Practice Guide, August review in Hulu, LLC v. Sound View in each of the new proceedings. See 2018 Update, the Office is proposing to Innovations, LLC, Case IPR2018–01039, Office Patent Trial Practice Guide, 77 FR amend §§ 42.23, 42.24, 42.120, and Paper 15 (PTAB Apr. 3, 2019) (granting 48756 (Aug. 14, 2012). This guide has 42.220 to permit (1) replies and patent POP review), indicated that the rule has been periodically updated. See Office owner responses to address issues caused some confusion at the institution Patent Trial Practice Guide, August discussed in the institution decision, stage for AIA proceedings. For example, 2018 Update, 83 FR 39989 (Aug. 13, and (2) sur-replies to principal briefs certain stakeholders have indicated that 2018); and Office Patent Trial Practice (i.e., to a reply to a patent owner the presumption in favor of the Guide, July 2019 Update, 84 FR 33925 response or to a reply to an opposition petitioner for genuine issues of material (July 16, 2019). A consolidated Trial to a motion to amend). 83 FR 39989; the fact created by patent owner testimonial Practice Guide, incorporating updates to Office Patent Trial Practice Guide, evidence also creates a presumption in the original August 2012 Practice Guide, August 2018 Update is available at favor of the petitioner for questions was recently published in November https://www.uspto.gov/sites/default/ relating to whether a document is a 2019. See Consolidated Trial Practice files/documents/2018_Revised_Trial_ printed publication. Additionally, the Guide, 84 FR 64280 (Nov. 21, 2019). Practice_Guide.pdf; see id. at 14–15. Office has concerns that the Previously, under 37 CFR 42.108(a) As noted in the August 2018 Practice presumption in favor of the petitioner and 42.208(a), the Board exercised the Guide Update, in response to issues may be viewed as discouraging patent

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owners from filing testimonial evidence Section 42.23 to be amended to delete the phrase ‘‘but with their preliminary responses, as Section 42.23 is proposed to be a genuine issue of material fact created some patent owners believe that such amended to permit patent owners to file by such testimonial evidence will be testimony will not be given any weight sur-replies to principal briefs (i.e., to a viewed in the light most favorable to the at the time of institution. reply to a patent owner response or to petitioner solely for purposes of deciding whether to institute [a] Section 314(a) of 35 U.S.C. provides a reply to an opposition to a motion to review.’’ Therefore, the second sentence that ‘‘[t]he Director may not authorize amend). In particular, the title and § 42.23(a) are proposed to be amended in each of §§ 42.108(c) and 42.208(c) an inter partes review to be instituted would state: ‘‘The Board’s decision will unless the Director determines that the to add ‘‘sur-replies’’ so that the rule would be amended as follows: ‘‘42.23 take into account a patent owner information presented in the petition preliminary response where such a . . . and any response . . . shows that Oppositions, replies, and sur-replies. (a) Oppositions, replies, and sur-replies response is filed, including any there is a reasonable likelihood that the testimonial evidence.’’ petitioner would prevail with respect to . . . and, if the paper to which the at least 1 of the claims challenged in the opposition, reply, or sur-reply . . .’’ Sections 42.120 and 42.220 Paragraph (b) of § 42.23 is proposed to petition.’’ 35 U.S.C. 314(a). Thus, the be amended to permit petitioners to The first sentence of each of statute provides that a petitioner is address issues discussed in the §§ 42.108(a) and 42.208(a) is proposed required to present evidence and institution decision in the reply briefs. to be replaced with the following: ‘‘(a) arguments sufficient to show that it is Specifically, § 42.23(b) is proposed to be Scope. A patent owner may file a reasonably likely that it will prevail in amended to replace the second sentence response to the petition or decision on showing the unpatentability of the with: ‘‘A reply may only respond to institution.’’ challenged claims. Hulu, LLC v. Sound arguments raised in the corresponding Rulemaking Considerations View Innovations LLC, Case IPR2018– opposition, patent owner preliminary 01039, Paper 29 at 12–13 (PTAB Dec. A. Administrative Procedure Act response, patent owner response, or (APA): This proposed rule would revise 20, 2019) (citing 35 U.S.C. 312(a)(3), decision on institution.’’ Paragraph (b) 314(a)). For a post-grant review the rules relating to Office trial practice of § 42.23 is further proposed to be for IPR, PGR, and CBM proceedings. proceeding, the standard for institution amended to address the content of a sur- The changes being proposed in this is whether it is ‘‘more likely than not’’ reply by adding the following third notice of proposed rulemaking would that the petitioner would prevail at trial. sentence: ‘‘A sur-reply may only not change the substantive criteria of See 35 U.S.C. 324(a). In determining respond to arguments raised in the patentability. These proposed changes whether the information presented in corresponding reply.’’ involve rules of agency procedure and the petition meets the standard for Section 42.24 interpretation. See Perez v. Mortg. institution, the PTAB considers the The title and § 42.24(c) are proposed Bankers Ass’n, 135 S. Ct. 1199, 1204 totality of the evidence currently in the (2015) (Interpretive rules ‘‘advise the record. See Hulu, Paper 29 at 3, 19. to be amended to provide for word count limit for sur-replies so that they public of the agency’s construction of In this notice of proposed rulemaking, would be amended as follows: ‘‘§ 42.24 the statutes and rules which it the Office proposes to amend the rules Type-volume or page limits for administers.’’) (citation and internal of practice to eliminate the presumption petitions, motions, oppositions, replies, quotation marks omitted); Bachow in favor of the petitioner for a genuine and sur-replies’’ and ‘‘(c) Replies and Commc’ns, Inc. v. F.C.C., 237 F.3d 683, issue of material fact created by Sur-replies. The following word counts 690 (D.C. Cir. 2001) (Rules governing an testimonial evidence submitted with a or page limits for replies and sur-replies application process are procedural patent owner’s preliminary response apply . . .’’ under the Administrative Procedure when deciding whether to institute an Paragraph (c) of § 42.24 is also Act.); Inova Alexandria Hosp. v. IPR, PGR, or CBM review. Thus, proposed to be amended to add a new Shalala, 244 F.3d 342, 350 (4th Cir. consistent with the statutory framework, paragraph (4) that would limit sur- 2001) (Rules for handling appeals were any testimonial evidence submitted replies to patent owner responses to procedural where they did not change with a patent owner’s preliminary petitions to 5,600 words. the substantive requirements for response will be taken into account as reviewing claims.); Nat’l Org. of Sections 42.108 and 42.208 part of the totality of the evidence. As Veterans’ Advocates, Inc. v. Sec’y of part of the Office’s continuing efforts to Each of §§ 42.108(a) and 42.208(a) is Veterans Affairs, 260 F.3d 1365, 1375 improve AIA proceedings, the Office proposed to be amended to state that (Fed. Cir. 2001) (Rule that clarifies requests input from the public on the when instituting inter partes review or interpretation of a statute is proposed rule changes in this notice of post-grant review, the Board will interpretive.); and JEM Broadcasting Co. proposed rulemaking and on how the authorize the review to proceed on all v. F.C.C., 22 F.3d 320, 328 (DC Cir. Office should implement the changes if of the challenged claims and on all 1994) (Rules are not legislative because they do not ‘‘foreclose effective adopted. For example, as to the grounds of unpatentability asserted for opportunity to make one’s case on the implementation, the Office may apply each claim. Each of §§ 42.108(b) and 42.208(b) is merits.’’). any rule changes, if adopted, to all proposed to be amended to state that at Accordingly, prior notice and pending IPR, PGR, and CBM any time prior to institution of inter opportunity for public comment are not proceedings in which a patent owner’s partes review or post-grant review, the required pursuant to 5 U.S.C. 553(b) or preliminary response is filed on or after Board may deny all grounds for (c) (or any other law). See Perez, 135 S. the effective date. unpatentability for all of the challenged Ct. 1199, 1206 (Notice-and-comment Discussion of Specific Rules claims. Denial of all grounds is a Board procedures are required neither when decision not to institute inter partes or an agency ‘‘issue[s] an initial Title 37 of the Code of Federal post-grant review. interpretive rule’’ nor ‘‘when it amends Regulations, part 42, is proposed to be The second sentence in each of or repeals that interpretive rule.’’); amended as follows: §§ 42.108(c) and 42.208(c) is proposed Cooper Techs. Co. v. Dudas, 536 F.3d

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1330, 1336–37 (Fed. Cir. 2008) (stating significant economic impact on a 3(a) and 3(b)(2) of Executive Order that 5 U.S.C. 553, and thus 35 U.S.C. substantial number of small entities. 12988 (Feb. 5, 1996). 2(b)(2)(B), do not require notice and C. Executive Order 12866 (Regulatory I. Executive Order 13045 (Protection comment rulemaking for ‘‘interpretative Planning and Review): This rulemaking of Children): This rulemaking does not rules, general statements of policy, or has been determined to be not concern an environmental risk to health rules of agency organization, procedure, significant for purposes of Executive or safety that may disproportionately or practice’’) (quoting 5 U.S.C. Order 12866 (Sept. 30, 1993). affect children under Executive Order 553(b)(3)(A)). D. Executive Order 13563 (Improving 13045 (Apr. 21, 1997). The Office, nevertheless, is publishing Regulation and Regulatory Review): The J. Executive Order 12630 (Taking of this proposed rule for comment to seek Office has complied with Executive Private Property): This rulemaking will the benefit of the public’s views on the Order 13563 (Jan. 18, 2011). not affect a taking of private property or Office’s proposed changes as set forth Specifically, the Office has, to the extent otherwise have taking implications herein. feasible and applicable: (1) Made a under Executive Order 12630 (Mar. 15, B. Regulatory Flexibility Act: For the reasoned determination that the benefits 1988). reasons set forth herein, the Deputy justify the costs of the rule; (2) tailored K. Congressional Review Act: Under General Counsel for General Law of the the rule to impose the least burden on the Congressional Review Act provisions of the Small Business United States Patent and Trademark society consistent with obtaining the Regulatory Enforcement Fairness Act of Office has certified to the Chief Counsel regulatory objectives; (3) selected a 1996 (5 U.S.C. 801 et seq.), prior to for Advocacy of the Small Business regulatory approach that maximizes net issuing any final rule, the United States Administration that changes proposed benefits; (4) specified performance Patent and Trademark Office will in this notice of proposed rulemaking objectives; (5) identified and assessed submit a report containing the rule and will not have a significant economic available alternatives; (6) involved the other required information to the United impact on a substantial number of small public in an open exchange of States Senate, the United States House entities. See 5 U.S.C. 605(b). information and perspectives among The changes proposed in this of Representatives, and the Comptroller experts in relevant disciplines, affected document are to revise certain trial General of the Government stakeholders in the private sector, and practice procedures before the Board in Accountability Office. The changes in light of the Supreme Court’s ruling in the public as a whole, and provided this notice of proposed rulemaking are SAS Institute Inc. v. Iancu, 138 S. Ct. online access to the rulemaking docket; not expected to result in an annual 1348 (2018), that a decision to institute (7) attempted to promote coordination, effect on the economy of $100 million an IPR under 35 U.S.C. 314 may not simplification, and harmonization or more, a major increase in costs or institute on fewer than all claims across government agencies and prices, or significant adverse effects on challenged in a petition. In accordance identified goals designed to promote competition, employment, investment, with that ruling, the Office proposes innovation; (8) considered approaches productivity, innovation, or the ability changes to the rules of practice for that reduce burdens and maintain of United States-based enterprises to instituting review on all challenged flexibility and freedom of choice for the compete with foreign-based enterprises claims or none in inter partes review public; and (9) ensured the objectivity of in domestic and export markets. (‘‘IPR’’), post-grant review (‘‘PGR’’), and scientific and technological information Therefore, this proposed rulemaking is the transitional program for covered and processes. not a ‘‘major rule’’ as defined in 5 U.S.C. business method patents (‘‘CBM’’) E. Executive Order 13771 (Reducing 804(2). proceedings before the Patent Trial and Regulation and Controlling Regulatory L. Unfunded Mandates Reform Act of Appeal Board (‘‘PTAB’’ or ‘‘Board’’). Costs): This proposed rule is not 1995: The proposed changes set forth in The Office also proposes changes to the expected to be an Executive Order this notice of proposed rulemaking do rules of practice for instituting a review 13771 (Jan. 30, 2017) regulatory action not involve a federal intergovernmental on all grounds of unpatentability for the because this proposed rule is not mandate that will result in the challenged claims that are asserted in a significant under Executive Order 12866 expenditure by state, local, and tribal petition. Additionally, the Office (Sept. 30, 1993). governments, in the aggregate, of $100 proposes changes to the rules to F. Executive Order 13132 million (as adjusted) or more in any one conform to the current standard practice (Federalism): This rulemaking does not year, or a federal private-sector mandate of providing sur-replies to principal contain policies with federalism that will result in the expenditure by the briefs and providing that a patent owner implications sufficient to warrant private sector of $100 million (as response and reply may respond to a preparation of a Federalism Assessment adjusted) or more in any one year, and decision on institution. The Office under Executive Order 13132 (Aug. 4, will not significantly or uniquely affect further proposes a change to eliminate 1999). small governments. Therefore, no the presumption that a genuine issue of G. Executive Order 13211 (Energy actions are necessary under the material fact created by the patent Effects): This rulemaking is not a provisions of the Unfunded Mandates owner’s testimonial evidence filed with significant energy action under Reform Act of 1995. See 2 U.S.C. 1501 a preliminary response will be viewed Executive Order 13211 because this et seq. in the light most favorable to the rulemaking is not likely to have a M. National Environmental Policy petitioner for purposes of deciding significant adverse effect on the supply, Act: This rulemaking will not have any whether to institute a review. These distribution, or use of energy. Therefore, effect on the quality of the environment changes are procedural in nature, and a Statement of Energy Effects is not and is thus categorically excluded from any requirements resulting from these required under Executive Order 13211 review under the National proposed changes are of minimal or no (May 18, 2001). Environmental Policy Act of 1969. See additional burden to those practicing H. Executive Order 12988 (Civil 42 U.S.C. 4321 et seq. before the Board. Justice Reform): This rulemaking meets N. National Technology Transfer and For the foregoing reasons, the applicable standards to minimize Advancement Act: The requirements of proposed changes in this notice of litigation, eliminate ambiguity, and section 12(d) of the National proposed rulemaking would not have a reduce burden as set forth in sections Technology Transfer and Advancement

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Act of 1995 (15 U.S.C. 272 note) are not (b) All arguments for the relief § 42.120 Patent owner response. applicable because this rulemaking does requested in a motion must be made in (a) Scope. A patent owner may file a not contain provisions that involve the the motion. A reply may only respond response to the petition or decision on use of technical standards. to arguments raised in the institution. A patent owner response is O. Paperwork Reduction Act: The corresponding opposition, patent owner filed as an opposition and is subject to Paperwork Reduction Act of 1995 (44 preliminary response, patent owner the page limits provided in § 42.24. U.S.C. 3501–3549) requires that the response, or decision on institution. A Office consider the impact of paperwork sur-reply may only respond to * * * * * and other information collection arguments raised in the corresponding ■ 6. Amend § 42.208 by revising burdens imposed on the public. This reply. paragraphs (a), (b), and (c) to read as proposed rulemaking does not involve ■ 3. Amend § 42.24 by revising the follows: an information collection requirement section heading and paragraph (c) that is subject to review by the Office of introductory text and adding paragraph § 42.208 Institution of post-grant review. Management and Budget (OMB) under (c)(4) to read as follows: (a) When instituting post-grant the Paperwork Reduction Act of 1995 review, the Board will authorize the (44 U.S.C. 3501–3549). This rulemaking § 42.24 Type-volume or page limits for petitions, motions, oppositions, replies, and review to proceed on all of the does not add any additional information sur-replies. challenged claims and on all grounds of requirements or fees for parties before the Board. Therefore, the Office is not * * * * * unpatentability asserted for each claim. resubmitting information collection (c) Replies and sur-replies. The (b) At any time prior to institution of packages to OMB for its review and following word counts or page limits for post-grant review, the Board may deny approval because the revisions in this replies and sur-replies apply and all grounds for unpatentability for all of rulemaking do not materially change the include any statement of facts in the challenged claims. Denial of all information collections approved under support of the reply. The word counts grounds is a Board decision not to OMB control number 0651–0069. or page limits do not include a table of institute post-grant review. contents; a table of authorities; a listing Notwithstanding any other provision (c) Post-grant review shall not be of law, no person is required to respond of facts that are admitted, denied, or cannot be admitted or denied; a instituted unless the Board decides that to, nor shall any person be subject to, a the information presented in the penalty for failure to comply with a certificate of service or word count; or petition demonstrates that it is more collection of information subject to the an appendix of exhibits. likely than not that at least one of the requirements of the Paperwork * * * * * claims challenged in the petition is Reduction Act unless that collection of (4) Sur-replies to replies to patent information displays a currently valid owner responses to petitions: 5,600 unpatentable. The Board’s decision will OMB control number. words. take into account a patent owner * * * * * preliminary response where such a List of Subjects in 37 CFR Part 42 ■ 4. Revise § 42.108 to read as follows: response is filed, including any Administrative practice and testimonial evidence. A petitioner may procedure, Inventions and patents, § 42.108 Institution of inter partes review. seek leave to file a reply to the Lawyers. (a) When instituting inter partes preliminary response in accordance For the reasons set forth in the review, the Board will authorize the with §§ 42.23 and 42.24(c). Any such preamble, the Office proposes to amend review to proceed on all of the request must make a showing of good part 42 of title 37 as follows: challenged claims and on all grounds of cause. unpatentability asserted for each claim. * * * * * PART 42—TRIAL PRACTICE BEFORE (b) At any time prior to a decision on ■ THE PATENT TRIAL AND APPEAL institution of inter partes review, the 7. Amend § 42.220 by revising BOARD Board may deny all grounds for paragraph (a) to read as follows: unpatentability for all of the challenged § 42.220 Patent owner response. ■ 1. The authority citation for 37 CFR claims. Denial of all grounds is a Board part 42 continues to read as follows: decision not to institute inter partes (a) Scope. A patent owner may file a Authority: 35 U.S.C. 2(b)(2), 6, 21, 23, 41, review. response to the petition or decision on 135, 311, 312, 316, 321–326; Pub. L. 112–129, (c) Inter partes review shall not be institution. A patent owner response is 125 Stat. 284; and Pub. L. 112–274, 126 Stat. instituted unless the Board decides that filed as an opposition and is subject to 2456. the information presented in the the page limits provided in § 42.24. ■ 2. Revise § 42.23 to read as follows: petition demonstrates that there is a * * * * * reasonable likelihood that at least one of § 42.23 Oppositions, replies, and sur- the claims challenged in the petition is Andrei Iancu, replies. unpatentable. The Board’s decision will Under Secretary of Commerce for Intellectual (a) Oppositions, replies, and sur- take into account a patent owner Property and Director of the United States replies must comply with the content preliminary response where such a Patent and Trademark Office. requirements for motions and, if the response is filed, including any [FR Doc. 2020–10131 Filed 5–26–20; 8:45 am] paper to which the opposition, reply, or testimonial evidence. A petitioner may BILLING CODE 3510–16–P sur-reply is responding contains a seek leave to file a reply to the statement of material fact, must include preliminary response in accordance a listing of facts that are admitted, with §§ 42.23 and 42.24(c). Any such denied, or cannot be admitted or request must make a showing of good denied. Any material fact not cause. specifically denied may be considered ■ 5. Amend § 42.120 by revising admitted. paragraph (a) to read as follows:

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DEPARTMENT OF COMMERCE received are a part of the public record accountability measures to NMFS. and will generally be posted for public NMFS publishes annual specifications National Oceanic and Atmospheric viewing on www.regulations.gov in the Federal Register to establish Administration without change. All personal identifying these catch limits and management information (e.g., name, address, etc.), measures for each Pacific sardine 50 CFR Part 660 confidential business information, or fishing year. This rule proposes the [Docket No. 200519–0142; RTID 0648– otherwise sensitive information Council’s recommended catch limits for XW023] submitted voluntarily by the sender will the 2020–2021 fishing year, as well as be publicly accessible. NMFS will management measures to ensure that Fisheries Off West Coast States; accept anonymous comments (enter ‘‘N/ harvest does not exceed those limits, Coastal Pelagic Species Fisheries; A’’ in the required fields if you wish to and adoption of an OFL and ABC that 2020–2021 Annual Specifications and remain anonymous). take into consideration uncertainty Management Measures for Pacific A copy of the draft report surrounding the current estimate of Sardine ‘‘Assessment of Pacific Sardine biomass for Pacific sardine. Resource in 2020 for U.S.A. AGENCY: National Marine Fisheries Management in 2020–2021’’ is available Recommended Catch Limits Service (NMFS), National Oceanic and at: https://www.pcouncil.org/ According to the FMP, the catch limit Atmospheric Administration (NOAA), documents/2020/03/agenda-item-d-3- for the primary directed fishery is Commerce. attachment-1-stock-assessment-report- determined using the FMP-specified HG ACTION: Proposed rule; request for executive-summary-assessment-of-the- formula. The HG formula in the CPS comments. pacific-sardine-resource-in-2019-for-u-s- FMP is HG = [(Biomass-CUTOFF) * SUMMARY: NMFS proposes to implement management-in-2019-20-full-document- FRACTION * DISTRIBUTION] with the annual harvest specifications and electronic-only.pdf/, and may be parameters described as follows: management measures for the northern obtained from the West Coast Region 1. Biomass. The estimated stock subpopulation of Pacific sardine (see FOR FURTHER INFORMATION CONTACT). biomass of Pacific sardine age one and (hereafter, Pacific sardine), for the FOR FURTHER INFORMATION CONTACT: above. For the 2020–2021 management fishing year from July 1, 2020, through Lynn Massey, West Coast Region, season, this is 28,276 metric tons (mt). June 30, 2021. The proposed action NMFS, (562) 436–2462, lynn.massey@ 2. CUTOFF. This is the biomass level would prohibit most directed noaa.gov. below which no HG is set. The FMP commercial fishing for Pacific sardine SUPPLEMENTARY INFORMATION: NMFS established this level at 150,000 mt. off the coasts of Washington, Oregon, manages the Pacific sardine fishery in 3. DISTRIBUTION. The average and California. Pacific sardine harvest the U.S. exclusive economic zone (EEZ) portion of the Pacific sardine biomass would be allowed only in the live bait off the Pacific coast (California, Oregon, estimated in the EEZ off the Pacific fishery, minor directed fisheries, as and Washington) in accordance with the coast is 87 percent. incidental catch in other fisheries, or as Coastal Pelagic Species (CPS) Fishery 4. FRACTION. The temperature- authorized under exempted fishing Management Plan (FMP). The FMP and varying harvest fraction is the permits. The incidental harvest of its implementing regulations require percentage of the biomass above 150,000 Pacific sardine would be limited to 20 NMFS to set annual catch levels for the mt that may be harvested. percent by weight of all fish per trip Pacific sardine fishery based on the As described above, the Pacific when caught with other stocks managed annual specification framework and sardine HG control rule, the primary under the Coastal Pelagic Species control rules in the FMP. These control mechanism for setting the primary Fishery Management Plan or up to 2 rules include the harvest guideline (HG) directed fishery catch limit, includes a metric tons per trip when caught with control rule, which, in conjunction with CUTOFF parameter, which has been set non-Coastal Pelagic Species stocks. The the overfishing limit (OFL) and as a biomass level of 150,000 mt. This proposed annual catch limit for the acceptable biological catch (ABC) rules amount is subtracted from the annual 2020–2021 Pacific sardine fishing year in the FMP, are used to manage harvest biomass estimate before calculating the is 4,288 metric tons. This proposed rule levels for Pacific sardine, in accordance applicable HG for the fishing year. Since is intended to conserve and manage the with the Magnuson-Stevens Fishery this year’s biomass estimate is below Pacific sardine stock off the U.S. West Conservation and Management Act that value, the formula results in an HG Coast. (Magnuson-Stevens Act), 16 U.S.C. 1801 of zero, and no Pacific sardine are DATES: Comments must be received by et seq. available for the primary directed June 11, 2020. During public meetings each year, fishery during the 2020–2021 fishing ADDRESSES: You may submit comments NMFS’ Southwest Fisheries Science season. This would be the sixth on this document, identified by NOAA– Center (SWFSC) presents the estimated consecutive year that the primary NMFS–2020–0061, by the following biomass for Pacific sardine to the Pacific directed fishery is closed. method: Fishery Management Council’s Last fishing year (2019–2020), the • Electronic Submissions: Submit all (Council) CPS Management Team estimated biomass of Pacific sardine public comments via the Federal e- (Team), the Council’s CPS Advisory dropped below its 50,000-mt minimum Rulemaking Portal. Go to Subpanel (Subpanel) and the Council’s stock size threshold (MSST), which www.regulations.gov/ Scientific and Statistical Committee triggered an overfished determination #!docketDetail;D=NOAA-NMFS-2020- (SSC). The Team, Subpanel, and SSC process. NMFS accordingly declared the 0061, click the ‘‘Comment Now!’’ icon, review the biomass and the status of the stock overfished on June 26, 2019 and complete the required fields, and enter fishery, and recommend applicable notified the Council on July 9, 2019. or attach your comments. catch limits and additional management NMFS is working with the Council to Instructions: Comments sent by any measure. Following Council review and develop a rebuilding plan for sardine other method or received after the end public comment, the Council adopts a within two years of the date NMFS of the comment period may not be biomass estimate and recommends notified the Council that the stock was considered by NMFS. All comments catch limits and any in-season declared overfished.

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At the April 2020 Council meeting, as incidental catch in CPS and non-CPS Pursuant to section 304(b)(1)(A) of the the Council’s SSC approved, and the fisheries, and minor directed fishing, Magnuson-Stevens Act, the NMFS Council adopted, the SWFSC’s will be accounted for against the ACT Assistant Administrator has determined ‘‘Assessment of the Pacific Sardine and ACL. that this proposed rule is consistent Resource in 2020 for U.S. Management The NMFS West Coast Regional with the CPS FMP, other provisions of in 2020–2021’’ (see ADDRESSES). The Administrator would publish a notice in the Magnuson-Stevens Act, and other resulting Pacific sardine biomass the Federal Register to announce when applicable law, subject to further estimate of 28,276 mt was adopted as catch reaches the incidental limits as consideration after public comment. the best scientific information available well as any changes to allowable This proposed rule is exempt from for setting harvest specifications. Based incidental catch percentages. review under Executive Order 12866. on recommendations from its SSC and Additionally, to ensure that the Pursuant to Executive Order 13175, other advisory bodies, as well as the regulated community is informed of any this proposed rule was developed after OFL and ABC control rules in the CPS closure, NMFS would make meaningful consultation and FMP, the Council recommended, and announcements through other means collaboration with the tribal NMFS is proposing: an OFL of 5,525 mt; available, including emails to representative on the Council who has an ABC of 4,288 mt; an annual catch fishermen, processors, and state fishery agreed with the provisions that apply to limit (ACL) of 4,288 mt; and a management agencies. tribal vessels. prohibition on commercial Pacific In previous fishing years, the The Chief Counsel for Regulation of sardine catch, unless it is harvested as Quinault Indian Nation has requested, the Department of Commerce certified part of the live bait, tribal, or minor and NMFS has approved, a set-aside for to the Chief Counsel for Advocacy of the directed fisheries, as incidental catch in the exclusive right to harvest Pacific Small Business Administration that this other fisheries, or as part of exempted sardine in the Quinault Usual and proposed rule, if adopted, would not fishing permit (EFP) activities. The Accustomed Fishing Area off the coast have a significant economic impact on Council also recommended an annual of Washington State, pursuant to the a substantial number of small entities, catch target (ACT) of 4,000 mt for the 1856 Treaty of Olympia (Treaty with the for the following reasons: 2020–2021 fishing year. In conjunction Quinault). For the 2020–2021 fishing For Regulatory Flexibility Act (RFA) with setting an ACT, the Council also year, the Quinault Indian Nation has not purposes only, NMFS has established a recommended inseason and other requested a tribal set-aside and therefore small business size standard for management measures to ensure harvest none is proposed. businesses, including their affiliates, whose primary industry is commercial opportunity under the ACT throughout At the April 2020 meeting, although fishing (see 50 CFR 200.2). A business the year (see below). Council review and approval was removed from the Council’s agenda, the primarily engaged in commercial fishing Recommended Management Measures Council expressed support for three EFP (NAICS code 11411) is classified as a The proposed annual harvest limits proposals requesting an exemption from small business if it is independently and management measures were the prohibition to directly harvest owned and operated, is not dominant in developed in the context of the fact that sardine during their discussion of its field of operation (including its NMFS declared the Pacific sardine stock sardine management measures. This affiliates), and has combined annual overfished in July 2019. Since the action accounts for NMFS’ approval of receipts not in excess of $11 million for biomass remains below the 50,000 mt up to 1,145 mt of the ACL to be all its affiliated operations worldwide. MSST, the FMP requires that incidental harvested under EFPs. The purpose of this proposed rule is to conserve the Pacific sardine stock by catch of Pacific sardine in other CPS Classification fisheries be limited to an incidental preventing overfishing, while still This action must be effective by July allowing harvest opportunity among allowance of no more than 20 percent 1, 2020, otherwise the fishery will open differing fishery sectors. This will be by weight (instead of a maximum of 40 without any catch limits or restrictions accomplished by implementing the percent allowed when below the in place. In order to ensure that these 2020–2021 annual specifications for CUTOFF but above the MSST). The following are the proposed harvest specifications are effective in Pacific sardine in the U.S. EEZ off the management measures and inseason time for the start of the July 1 fishing West coast. The small entities that accountability measures for the Pacific year, NMFS will solicit public would be affected by the proposed sardine 2020–2021 fishing year: comments on this proposed rule for 15 action are the vessels that would be (1) If landings in the live bait fishery days rather than the standard 30 days. expected to harvest Pacific sardine as reach 2,500 mt, then a 1-mt per trip A 15-day comment period has been the part of the West Coast CPS small purse limit of sardine would apply to the live practice since the 2015–2016 fishing seine fleet if the fishery were open, as bait fishery. year when the primary directed fishery well as fishermen targeting other CPS, (2) A 20-percent incidental per for sardine was first closed. NMFS sardine for live bait, or sardine in the landing by weight catch allowance received the recommendations from the minor directed fishery. In 2014, the last would apply to other CPS primary Council that form the basis for this rule year that a directed fishery for Pacific directed fisheries (e.g., Pacific only last month. The subject of this sardine was allowed, there were mackerel). proposed rule—the establishment of the approximately 81 vessels permitted to (3) If the ACT of 4,000 mt is attained, reference points—is considered a operate in the directed sardine fishery then a 1-mt per trip limit of sardine routine action, because they are component of the CPS fishery off the would apply to all CPS fisheries (i.e., (1) calculated annually based on the U.S. West Coast; 58 vessels in the and (2) would no longer apply). framework control rules in the FMP. Federal CPS limited entry fishery off (4) An incidental per landing Additionally, the Council provides an California (south of 39° N. lat.); and a allowance of 2 mt of sardine would opportunity for public comment each combined 23 vessels in Oregon and apply to non-CPS fisheries. year at its April meeting before adopting Washington’s state Pacific sardine All sources of catch including any the recommended harvest specifications fisheries. The average annual per vessel EFP set-asides, the live bait fishery, and and management measures for the revenue in 2014 for those vessels was other minimal sources of harvest, such proceeding fishing year. well below the threshold level of $11

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million; therefore, all of these vessels for the 2020–2021 fishing year, this CPS vessels typically rely on multiple are considered small businesses under proposed rule will not change the species for profitability because the RFA. Because each affected vessel is potential profitability compared to the abundance of Pacific sardine, like the a small business, this proposed rule is previous fishing year. Additionally, other CPS stocks, is highly associated considered to equally affect all of these while the proposed 2020–2021 ACL is with ocean conditions and seasonality. small entities in the same manner. slightly lower compared to previous Variability in ocean conditions and Therefore, this rule would not create years, it is still expected to account for season results in variability in the disproportionate costs between small the various fishery sector needs (i.e., timing and location of CPS harvest and large vessels/businesses. live bait, incidental catch in other CPS throughout the year. Because each The CPS FMP and its implementing fisheries, and minor directed fisheries). species responds to ocean conditions in regulations require NMFS to annually The revenue derived from harvesting its own way, not all CPS stocks are set an OFL, ABC, ACL, and HG or ACT Pacific sardine is typically only one of likely to be abundant at the same time. for the Pacific sardine fishery based on the sources of fishing revenue for the Therefore, as abundance levels and the specified harvest control rules in the commercial vessels that participate in markets fluctuate, the CPS fishery as a FMP applied to the current stock this fishery. As a result, the economic whole has relied on a group of species biomass estimate for that year. The impact to the fleet from the proposed for its annual revenues. derived annual HG is the level typically action cannot be viewed in isolation. used to manage the primary directed From year to year, depending on market Therefore the proposed action, if sardine fishery and is the harvest level conditions and availability of fish, most adopted, will not have a significant NMFS typically uses for profitability CPS/sardine vessels supplement their economic impact on a substantial analysis each year. As stated above, the income by harvesting other species. number of small entities. As a result, an CPS FMP dictates that when the Many vessels in California also harvest Initial Regulatory Flexibility Analysis is estimated biomass drops below a certain anchovy, mackerel, and in particular, not required, and none has been level (150,000 mt), the HG is zero. squid, making Pacific sardine only one prepared. Therefore, for the purposes of component of a multi-species CPS This action does not contain a profitability analysis, this action is fishery. Additionally, some sardine collection-of-information requirement essentially proposing an HG of zero for vessels that operate off of Oregon and for purposes of the Paperwork the 2020–2021 Pacific sardine fishing Washington also fish for salmon in Reduction Act. season (July 1, 2020, through June 30, Alaska or squid in California during Authority: 16 U.S.C. 1801 et seq. 2021). The estimated biomass used for times of the year when sardine are not management during the preceding available. The purpose of the incidental Dated: May 20, 2020. fishing year (2019–2020) was also below catch limits proposed in this action are Samuel D. Rauch III, 150,000 mt. Therefore, NMFS did not to ensure the vessels impacted by a Deputy Assistant Administrator for implement an HG for the 2019–2020 prohibition on directly harvesting Regulatory Programs, National Marine fishing year, thereby prohibiting the sardine can still access these other Fisheries Service. primary directed Pacific sardine fishery. profitable fisheries while still [FR Doc. 2020–11322 Filed 5–26–20; 8:45 am] Since there is again no directed fishing minimizing Pacific sardine harvest. BILLING CODE 3510–22–P

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Notices Federal Register Vol. 85, No. 102

Wednesday, May 27, 2020

This section of the FEDERAL REGISTER persons are not required to respond to outlets are given no less favorable contains documents other than rules or the collection of information unless it treatment than afforded to domestic proposed rules that are applicable to the displays a currently valid OMB control goods destined for such exempt outlets. public. Notices of hearings and investigations, number. If the information is not collected, AMS committee meetings, agency decisions and would have no way of maintaining a rulings, delegations of authority, filing of Agricultural Marketing Service safe and legal import program for fruits, petitions and applications and agency Title: Specified Commodities statements of organization and functions are vegetables, and specialty crops, as this examples of documents appearing in this Imported into the United States Exempt is the only method of securing section. from Import Requirements, 7 CFR part compliance with section 8e of the Act. 944, 980, and 999. Description of Respondents: Business OMB Control Number: 0581–0167. or other for-profit; Not-for-profit DEPARTMENT OF AGRICULTURE Summary of Collection: Section 608e institutions. of the Agricultural Marketing Number of Respondents: 79. Submission for OMB Review; Agreement Act of 1937(AMAA), as Frequency of Responses: Reporting: Comment Request amended (7 U.S.C. 601–674), requires On occasion. that whenever the Secretary of Total Burden Hours: 581. May 21, 2020. Agriculture issues grade, size, quality, Agricultural Marketing Service The Department of Agriculture will or maturity regulations under domestic submit the following information Federal marketing orders, the same or Title: Vegetable and Specialty Crops. collection requirement(s) to OMB for comparable regulations must be used for OMB Control Number: 0581–0178. review and clearance under the imported commodities. Import Summary of Collection: The Paperwork Reduction Act of 1995, regulations apply only during those Agricultural Marketing Agreement Act Public Law 104–13 on or after the date periods when domestic marketing order of 1937 (7 U.S.C. 601–674; Act) was of publication of this notice. Comments regulations are in effect. No person may designed to permit regulation of certain are requested regarding: Whether the import products for processing or other agricultural commodities for the collection of information is necessary exempt purposes unless an executed purpose of providing orderly marketing for the proper performance of the Importers Exempt Commodity Form conditions in interstate commerce and functions of the agency, including (SC–6) accompanies the shipment. Both improving returns to growers. The whether the information will have the shipper and receiver are required to Orders and Agreements become practical utility; the accuracy of the register in the Compliance and effective only after public hearings are agency’s estimate of burden including Enforcement Management System held in accordance with formal the validity of the methodology and (CEMS) to electronically file an SC–6 rulemaking procedures specified by the assumptions used; ways to enhance the certificate to notify the Marketing Order Act. quality, utility and clarity of the and Agreement Division (MOAD) of the The vegetable, and specialty crops information to be collected; and ways to exemption activity. MOAD provides marketing order programs provide an minimize the burden of the collection of information on its website about the opportunity for producers in specified information on those who are to commodities imported under section 8e production areas to work together to respond, including through the use of of the Act and directions to the CEMS solve marketing problems that cannot be appropriate automated, electronic, portal. The Civil Penalty Stipulation solved individually. mechanical, or other technological Agreement (SC–7) is a ‘‘volunteer’’ form Need and Use of the Information: collection techniques or other forms of that provides the Agricultural Marketing Various forms are used to collect information technology. Comments Service (AMS) with an additional tool to information necessary to effectively regarding these information collections obtain resolution of certain cases carry out the requirements of the Act are best assured of having their full without the cost of going to a hearing. and the Order/Agreement. This includes effect if received by June 26, 2020. Need and Use of the Information: The forms covering the selection process for Written comments and importers wishing to import industry members to serve on a recommendations for the proposed commodities will use the electronic or marketing order’s committee or board information collection should be paper version of form SC–6, ‘‘Importer’s and ballots used in referenda to amend submitted within 30 days of the Exempt Commodity.’’ The information or continue marketing orders. Orders publication of this notice on the collected includes information on the and Agreements can authorize the following website www.reginfo.gov/ imported product (type of product and issuance of grade, size, quality, public/do/PRAMain. Find this lot identification), the importer’s contact maturity, inspection requirements, pack particular information collection by information, the U.S. Customs entry and container requirements, and selecting ‘‘Currently under 30-day number, inspection date, and intended pooling and volume regulations. Review—Open for Public Comments’’ or use (processing, charity, livestock/ Information collected is used to by using the search function. animal feed). In a situation where a formulate market policy, track current An agency may not conduct or party is alleged to have violated the inventory and statistical data for market sponsor a collection of information importation regulations, AMS can use development programs, ensure unless the collection of information SC–7, ‘‘Civil Penalty Stipulation compliance, and verify eligibility, displays a currently valid OMB control Agreement’’ form to settle the matter in monitor and record grower’s number and the agency informs exchange for the payment of a fine. information. If this information were not potential persons who are to respond to AMS utilizes the information to ensure collected, it would eliminate data the collection of information that such that imported goods destined for exempt needed to keep the industry and the

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Secretary abreast of changes at the State DEPARTMENT OF AGRICULTURE (202) 720–5627 to schedule a time to and local level. visit the FSIS Docket Room at 1400 Description of Respondents: Business Food Safety and Inspection Service Independence Avenue SW, Room 6065, or other for profit; Farms; Individuals or Washington, DC 20250–3700. [Docket No. FSIS–2020–0018] households. FOR FURTHER INFORMATION CONTACT: Gina Number of Respondents: 15,481. Notice of Request for Renewal of an Kouba, Office of Policy and Program Frequency of Responses: Reporting: Approved Information Collection (In- Development, Food Safety and On occasion, Quarterly, Biennially, Home Food Safety Behaviors and Inspection Service, USDA, 1400 Weekly, Semi-annually, Monthly, Consumer Education: Web-Based Independence Avenue SW, Room 6065, Annually and Recordkeeping. Total Burden Hours: 21,655. Survey) South Building, Washington, DC 20250– 3700; (202) 720–5627. AGENCY: Food Safety and Inspection Agricultural Marketing Service SUPPLEMENTARY INFORMATION: Service, USDA. Title: Organic Handler Market Title: In-Home Food Safety Behaviors Promotion Assessment Exemption ACTION: Notice and request for and Consumer Education: Web-Based under Federal Marketing Orders. comments. Survey. OMB Control Number: 0581–0216. OMB Number: 0583–0178. SUMMARY: In accordance with the Summary of Collection: Marketing Expiration Date of Approval: 10/31/ Paperwork Reduction Act of 1995 and order programs provide an opportunity 2020. the Office of Management and Budget for producers of fresh fruit, vegetables, Type of Request: Renewal of an (OMB) regulations, the Food Safety and and specialty crops in specified approved information collection. production areas to work together to Inspection Service (FSIS) is announcing Abstract: FSIS has been delegated the solve marketing problems that cannot be its intention to request renewal of the authority to exercise the functions of the solved individually. Under the approved information for an exploratory Secretary (7 CFR 2.18, 2.53) as specified Agricultural Marketing Agreement Act Web-based survey of consumers to in the Federal Meat Inspection Act of 1937 as amended (7 U.S.C. 601–674), evaluate food safety education and (FMIA) (21 U.S.C. 601, et seq.), the marketing orders may authorize communication activities and to inform Poultry Products Inspection Act (PPIA) production and marketing research, the development of food safety (21 U.S.C. 451, et seq.) and the Egg including paid advertising, to promote communication products. There are no Products Inspection Act (EPIA) (21 various commodities, which is paid for changes to the existing information U.S.C. 1031, et seq.). These statutes by assessments that are levied on the collection. The approval for this mandate that FSIS protect the public by handlers who are regulated by the information collection will expire on verifying that meat, poultry, and egg Orders. October 31, 2020. products are safe, wholesome, Section 10004 of the 2014 Farm Bill DATES: Submit comments on or before unadulterated, and properly labeled and expanded the organic assessment July 27, 2020. packaged. exemption originally established by the ADDRESSES: FSIS invites interested FSIS’s Office of Public Affairs and FAIR Act. The 2014 Farm Bill allows all persons to submit comments on this Consumer Education (OPACE) develops organic handlers to apply for an Federal Register notice. Comments may consumer education programs exemption from assessments on be submitted by one of the following concerning the safe handling, products certified as ‘‘organic’’ or ‘‘100 methods: preparation, and storage of meat, percent organic,’’ regardless of whether • Federal eRulemaking Portal: This poultry, and processed egg products, so the handler also markets conventional website provides commenters the ability as to improve consumer food handling or non-organic products. At the same to type short comments directly into the behaviors and minimize the incidence time, the 2014 Farm bill reduced the per comment field on the web page or to of foodborne illness. OPACE shares its response time to complete the form from attach a file for lengthier comments. Go food safety messages through various 30 minutes to 15 minutes. to http://www.regulations.gov. Follow outlets: The Food Safe Families Need and Use of the Information: the on-line instructions at that site for campaign, a cooperative effort of USDA, Handlers submit the completed SC–649 submitting comments. Food and Drug Administration, and form to the appropriate committee, • Mail, including CD–ROMs, etc.: Centers for Disease Control and board or council once a year to apply for Send to Docket Clerk, U.S. Department Prevention; Ask USDA; the Meat and an assessment exemption to a certain of Agriculture, Food Safety and Poultry Hotline, an interactive percentage. The information gathered on Inspection Service, 1400 Independence knowledge management system this form is necessary to assist the Avenue SW, Mailstop 3758, Room 6065, consumers can use to get answers from committees, boards and councils to Washington, DC 20250–3700. USDA employees via phone, chat, email determine an applicant’s eligibility • Hand- or courier-delivered and a frequently asked question assessment exemption and to verify submittals: Deliver to 1400 database; the FSIS website; social compliance. Independence Avenue SW, Room 6065, media; and public events. These Description of Respondents: Business Washington, DC 20250–3700. messages are focused on the four core or other for-profit; Farms. Instructions: All items submitted by food safety behaviors: Clean, separate, Number of Respondents: 210. Frequency of Responses: mail or electronic mail must include the cook, and chill. Recordkeeping; Reporting: On occasion; Agency name and docket number FSIS– By testing planned and tailoring Annually. 2020–0018. Comments received in existing communication programs and Total Burden Hours: 53. response to this docket will be made materials, FSIS can help to ensure that available for public inspection and it is effectively communicating with the Ruth Brown, posted without change, including any public to improve consumer food safety Departmental Information Collection personal information, to http:// practices. As part of ongoing activities Clearance Officer. www.regulations.gov. by OPACE to develop and evaluate its [FR Doc. 2020–11339 Filed 5–26–20; 8:45 am] Docket: For access to background public health education and BILLING CODE 3410–02–P documents or comments received, call communication activities, FSIS is

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requesting renewal of the approved randomly selected English-speaking recommended food safety practices and information collection to conduct adult members of a probability-based gather nationally representative data on exploratory Web-based surveys of Web-enabled research panel maintained updates to FSIS’ recall templates used to consumers. Findings from these surveys by a subcontractor. communicate life-saving public health will provide information about how The survey is designed to be information to the public and the media. FSIS communication programs and representative of the U.S. adult Estimate of Burden: The total materials affect consumer population. This representation is understanding of recommended safe achieved through address-based estimated burden for each iteration of food handling practices, as well as sampling (ABS), where every U.S. adult the survey is 978.2 hours, for a total insight into how to effectively inform with an address (including those who burden of 1,956.4 hours. To achieve 80 consumers about recommended do not have a landline phone number) completed surveys during the pretest, practices. The findings will be used to has an equal probability of being 146 randomly selected panel members enhance communication programs and selected for participation on the panel. will be invited via email to take the materials developed to improve A random sample of individuals will be survey. To achieve 2,400 completed consumers’ food safety behaviors and selected from the panel for participation surveys during the full-scale study, help prevent foodborne illness. in the survey. A pilot will be conducted 4,400 randomly selected panel members Additionally, this research will provide before the survey to test the survey will be invited via email to take the useful information for tracking progress instrument and procedures. survey. Therefore, a total of 4,546 (146 toward the goals outlined in the FSIS The first iteration of the survey + 4,400) potential panel members will Fiscal Years 2017–2021 Strategic Plan. collected information on consumer use be invited to participate in both the FSIS has contracted with RTI of and response to the Meat and Poultry pretest and the full-scale study for each International to conduct two iterations Hotline, consumer awareness of The iteration of the survey. The invitation Food Safe Families campaign, and of a web-based survey. The first survey email for the pretest and the full-scale was conducted in Fiscal Year (FY) 2019 consumer behaviors for preparing raw survey is expected to take 2 minutes and the second survey will be meat and poultry products. The second (0.03333 hour). Each survey is expected conducted in FY 2021. Each iteration of iteration of the survey will pilot a food the exploratory survey is designed to safety literacy measure on consumers’ to take 20 minutes (0.33333 hours) to collect information from 2,400 awareness and understanding of complete.

ESTIMATED ANNUAL REPORTING BURDEN FOR THE FY 2019 WEB-BASED CONSUMER SURVEY

Estimated Annual Study component number of frequency Total annual Hours per response Total hours respondents per response responses

Pretest Invitation ...... 146 1 146 0.03333 (2 min.) ...... 4.87 Pretest 1 ...... 80 1 80 0.33333 (20 min.) ...... 26.67 Survey Invitation ...... 4,400 1 4,400 0.03333 (2 min.) ...... 146.67 Survey 1 ...... 2,400 1 2,400 0.33333 (20 min.) ...... 800

Total ...... 4,546 ...... 978.2 1 A subset of the people who received the invitation.

ESTIMATED ANNUAL REPORTING BURDEN FOR THE FY 2021 WEB-BASED CONSUMER SURVEY

Estimated Annual Study component number of frequency Total annual Hours per response Total hours respondents per response responses

Pretest Invitation ...... 146 1 146 0.03333 (2 min.) ...... 4.87 Pretest 1 ...... 80 1 80 0.033333 (20 min.) ...... 26.67 Survey Invitation ...... 4,400 1 4,400 0.03333 (2 min.) ...... 146.67 Survey 1 ...... 2,400 1 2,400 0.033333 (20 min.) ...... 800

Total ...... 4,546 ...... 978.2 1 A subset of the people who received the invitation.

Respondents: Consumers. South Building, Washington, DC 20250– utility, and clarity of the information to Estimated No. of Respondents: 9,092. 3700; (202) 720–5627. be collected; and (d) ways to minimize Estimated No. of Annual Responses Comments are invited on: (a) Whether the burden of the collection of per Respondent: 1. the proposed collection of information information, including through the use Estimated Total Burden on is necessary for the proper performance of appropriate automated, electronic, Respondents: 1,956.4 hours. of FSIS’s functions, including whether mechanical, or other technological Copies of this information collection the information will have practical collection techniques, or other forms of assessment can be obtained from Gina utility; (b) the accuracy of FSIS’s information technology. Comments may Kouba, Office of Policy and Program estimate of the burden of the proposed be sent to both FSIS, at the addresses Development, Food Safety and collection of information, including the provided above, and the Desk Officer for Inspection Service, USDA, 1400 validity of the method and assumptions Agriculture, Office of Information and Independence Avenue SW, Room 6065, used; (c) ways to enhance the quality, Regulatory Affairs, Office of

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Management and Budget (OMB), Mail: U.S. Department of Agriculture, Members of the public are entitled to Washington, DC 20253. Director, Office of Adjudication, 1400 make comments during the open period Responses to this notice will be Independence Avenue SW, Washington, at the end of the meeting. Members of summarized and included in the request DC 20250–9410. the public may also submit written for OMB approval. All comments will Fax: (202) 690–7442. comments; the comments must be also become a matter of public record. Email: [email protected]. received in the Regional Programs Unit within 30 days following the meeting. Additional Public Notification Persons with disabilities who require alternative means for communication Written comments may be mailed to the Public awareness of all segments of (Braille, large print, audiotape, etc.), Western Regional Office, U.S. rulemaking and policy development is should contact USDA’s TARGET Center Commission on Civil Rights, 300 North important. Consequently, FSIS will at (202) 720–2600 (voice and TDD). Los Angeles Street, Suite 2010, Los announce this Federal Register Angeles, CA 90012. They may also be publication on-line through the FSIS Paul Kiecker, emailed to Brooke Peery at bpeery@ web page located at: http:// Administrator. usccr.gov. www.fsis.usda.gov/federal-register. [FR Doc. 2020–11269 Filed 5–26–20; 8:45 am] Records and documents discussed FSIS will also announce and provide BILLING CODE 3410–DM–P during the meeting will be available for a link to this Federal Register public viewing prior to and after the publication through the FSIS meeting at https:// Constituent Update, which is used to COMMISSION ON CIVIL RIGHTS www.facadatabase.gov/FACA/ provide information regarding FSIS FACAPublicViewCommitteeDetails? policies, procedures, regulations, Notice of Public Meeting of the New id=a10t0000001gzlGAAQ. Federal Register notices, FSIS public Mexico Advisory Committee Please click on ‘‘Committee Meetings’’ meetings, and other types of information tab. Records generated from this AGENCY: U.S. Commission on Civil that could affect or would be of interest meeting may also be inspected and Rights. to our constituents and stakeholders. reproduced at the Regional Programs The Constituent Update is available on ACTION: Announcement of meeting. Unit, as they become available, both the FSIS web page. Through the web before and after the meeting. Persons SUMMARY: Notice is hereby given, interested in the work of this Committee page, FSIS can provide information to a pursuant to the provisions of the rules much broader, more diverse audience. are directed to the Commission’s and regulations of the U.S. Commission website, http://www.usccr.gov, or may In addition, FSIS offers an email on Civil Rights (Commission) and the subscription service which provides contact the Regional Programs Unit at Federal Advisory Committee Act the above email or street address. automatic and customized access to (FACA), that a meeting of the New selected food safety news and Mexico Advisory Committee will be Agenda information. This service is available at: held at 2:00 p.m. Mountain Time on I. Welcome and Roll Call http://www.fsis.usda.gov/subscribe. Tuesday, June 16, 2020. The purpose of Options range from recalls to export II. Panelist Discussion the meeting is for the Committee to hear III. Committee Q&A information, regulations, directives, and testimony on wage theft and IV. Public Comment notices. Customers can add or delete subminimum wages in New Mexico. V. Adjournment subscriptions themselves and have the option to password protect their DATES: The meeting will be held on Dated: May 20, 2020. accounts. Tuesday, June 16, 2020 at 2:00 p.m. David Mussatt, Mountain Time. Supervisory Chief, Regional Programs Unit. USDA Non-Discrimination Statement Public Call Information: Dial: 888– [FR Doc. 2020–11291 Filed 5–26–20; 8:45 am] No agency, officer, or employee of the 318–7452, Conference ID: 6816683. BILLING CODE P USDA shall, on the grounds of race, FOR FURTHER INFORMATION CONTACT: color, national origin, religion, sex, Brooke Peery, Designated Federal gender identity, sexual orientation, Officer (DFO) at [email protected] or COMMISISON ON CIVIL RIGHTS disability, age, marital status, family/ (202) 701–1376. Notice of Public Meetings of the parental status, income derived from a SUPPLEMENTARY INFORMATION: This Oklahoma Advisory Committee public assistance program, or political meeting is available to the public beliefs, exclude from participation in, through the following toll-free call-in AGENCY: U.S. Commission on Civil deny the benefits of, or subject to number: 888–318–7452, conference ID Rights. discrimination any person in the United number: 6816683. Any interested ACTION: Announcement of meeting. States under any program or activity member of the public may call this conducted by the USDA. number and listen to the meeting. SUMMARY: Notice is hereby given, pursuant to the provisions of the rules How To File a Complaint of Callers can expect to incur charges for and regulations of the U.S. Commission Discrimination calls they initiate over wireless lines, and the Commission will not refund any on Civil Rights (Commission) and the To file a complaint of discrimination, incurred charges. Callers will incur no Federal Advisory Committee Act that complete the USDA Program charge for calls they initiate over land- the Oklahoma Advisory Committee Discrimination Complaint Form, which line connections to the toll-free (Committee) will hold a meeting on may be accessed online at http:// telephone number. Persons with hearing Monday, June 15, 2020 at 2:00 p.m. www.ocio.usda.gov/sites/default/files/ impairments may also follow the Central Time. For the purpose of docs/2012/Complain_combined_6_8_ proceedings by first calling the Federal discussing potential project topics. 12.pdf, or write a letter signed by you Relay Service at 1–800–877–8339 and DATES: The meeting will take place on or your authorized representative. providing the Service with the Monday, June 15, 2020 at 2:00 p.m. Send your completed complaint form conference call number and conference Central Time. or letter to USDA by mail, fax, or email: ID number. Public Call Information:

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Dial: 888–394–8218, Dated: May 20, 2020. Angeles, CA 90012 or email Ana Conference ID: 7031317. David Mussatt, Victoria Fortes at [email protected]. Supervisory Chief, Regional Programs Unit. Records and documents discussed FOR FURTHER INFORMATION CONTACT: during the meeting will be available for Brooke Peery, DFO, at [email protected] [FR Doc. 2020–11295 Filed 5–26–20; 8:45 am] BILLING CODE P public viewing prior to and after the or (202) 701–1376. meetings at https:// SUPPLEMENTARY INFORMATION: Members www.facadatabase.gov/FACA/ of the public may listen to this COMMISSION ON CIVIL RIGHTS FACAPublicViewCommitteeDetails?id= discussion through the above call in a10t0000001gzliAAA. number. An open comment period will Notice of Public Meeting of the Please click on ‘‘Committee Meetings’’ be provided to allow members of the Wyoming Advisory Committee tab. Records generated from these public to make a statement as time meetings may also be inspected and AGENCY: U.S. Commission on Civil allows. The conference call operator reproduced at the Regional Programs Rights. will ask callers to identify themselves, Unit, as they become available, both the organization they are affiliated with ACTION: Announcement of meeting. before and after the meetings. Persons (if any), and an email address prior to interested in the work of this Committee SUMMARY: Notice is hereby given, placing callers into the conference are directed to the Commission’s pursuant to the provisions of the rules room. Callers can expect to incur regular website, https://www.usccr.gov, or may and regulations of the U.S. Commission charges for calls they initiate over contact the Regional Programs Unit at on Civil Rights (Commission) and the wireless lines, according to their the above email or street address. wireless plan. The Commission will not Federal Advisory Committee Act Agenda refund any incurred charges. Callers (FACA) that the meeting of the will incur no charge for calls they Wyoming Advisory Committee I. Welcome initiate over land-line connections to (Committee) to the Commission will be II. Discuss Report the toll-free telephone number. Persons held at 2:00 p.m. (MDT) Tuesday, June III. Public Comment with hearing impairments may also 16, 2020. The purpose of the meeting is IV. Next Steps follow the proceedings by first calling for the committee to review their report V. Adjournment on hate crimes. the Federal Relay Service at 1–800–877– Dated: May 20, 2020. DATES: Tuesday, June 16, 2020 at 2:00 8339 and providing the Service with the David Mussatt, conference call number and conference p.m. MDT Supervisory Chief, Regional Programs Unit. ID number. Public Call Information: [FR Doc. 2020–11294 Filed 5–26–20; 8:45 am] Members of the public are entitled to Dial: 800–367–2403 submit written comments; the Conference ID: 7782673 BILLING CODE 6335–01–P comments must be received in the FOR FURTHER INFORMATION CONTACT: Ana regional office within 30 days following Victoria Fortes, Designated Federal Officer (DFO) at [email protected] or the meeting. Written comments may be DEPARTMENT OF COMMERCE mailed to the Regional Programs Unit, (202) 681–0857 U.S. Commission on Civil Rights, 230 S. SUPPLEMENTARY INFORMATION: This International Trade Administration Dearborn, Suite 2120, Chicago, IL meeting is available to the public 60604. They may also be faxed to the through the following toll-free call-in [A–201–836] Commission at (312) 353–8324, or number: 800–367–2403, conference ID emailed to Corrine Sanders at csanders@ number: 7782673. Any interested Light-Walled Rectangular Pipe and usccr.gov. Persons who desire member of the public may call this Tube From Mexico: Amended Final additional information may contact the number and listen to the meeting. Results of Antidumping Duty Regional Programs Unit at (312) 353– Callers can expect to incur charges for Administrative Review; 2017–2018 8311. calls they initiate over wireless lines, Records generated from this meeting and the Commission will not refund any AGENCY: Enforcement and Compliance, may be inspected and reproduced at the incurred charges. Callers will incur no International Trade Administration, Regional Programs Unit Office, as they charge for calls they initiate over land- Department of Commerce. become available, both before and after line connections to the toll-free SUMMARY: The Department of Commerce the meeting. Records of the meeting will telephone number. Persons with hearing (Commerce) is amending the final be available via www.facadatabase.gov impairments may also follow the results of the administrative review of under the Commission on Civil Rights, proceedings by first calling the Federal the antidumping duty (AD) order on Oklahoma Advisory Committee link. Relay Service at 1–800–877–8339 and light-walled rectangular pipe and tube Persons interested in the work of this providing the Service with the from Mexico to correct a ministerial Committee are directed to the conference call number and conference error. ID number. Commission’s website, http:// DATES: Applicable May 27, 2020. www.usccr.gov, or may contact the Members of the public are entitled to FOR FURTHER INFORMATION CONTACT: Regional Programs Unit at the above make comments during the open period Samuel Brummitt or John Conniff, AD/ email or street address. at the end of the meeting. Members of the public may also submit written CVD Operations, Office III, Enforcement Agenda comments; the comments must be and Compliance, International Trade received in the Regional Programs Unit Administration, U.S. Department of I. Welcome & Roll Call Commerce, 1401 Constitution Avenue II. Approval of Minutes within 30 days following the meeting. Written comments may be mailed to the NW, Washington, DC 20230; telephone: III. Discuss on Potential Project Prompts Western Regional Office, U.S. (202) 482–7851 or (202) 482–1009, IV. Public Comment Commission on Civil Rights, 300 North respectively. VI. Adjournment Los Angeles Street, Suite 2010, Los SUPPLEMENTARY INFORMATION:

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Background ministerial error by amending . . . the Weighted- final results of review. . . .’’ average On April 20, 2020, the Department of Producer and/or exporter dumping Commerce (Commerce) published its Ministerial Error margin Final Results of the 2017–2018 (percent) administrative review of the Commerce committed an inadvertent, antidumping duty order on light-walled unintentional error within the meaning Aceros Cuatro Caminos S.A. de C.V ...... 3.17 1 of section 751(h) of the Act and 19 CFR rectangular pipe and tube from Mexico. Arco Metal S.A. de C.V ...... 3.17 On April 30, 2020, Maquilacero S.A. de 351.224(f) with respect to an adjustment Galvak, S.A. de C.V ...... 3.17 C.V. (Maquilacero), one of the to Maquilacero’s total cost of Grupo Estructuras y Perfiles ...... 3.17 respondents in this administrative manufacturing. Specifically, when Industrias Monterrey S.A. de C.V 3.17 review, timely submitted comments reallocating certain costs for International de Aceros, S.A. de alleging a ministerial error in Maquilacero’s non-prime merchandise C.V ...... 3.17 Commerce’s Final Results.2 Commerce to its prime merchandise, we Maquilacero S.A. de C.V ...... 2.82 Nacional de Acero S.A. de C.V .. 3.17 is issuing this notice to correct the inadvertently relied upon a production ministerial error raised by Maquilacero. PEASA-Productos quantity that included out-of-scope Especializados de Acero ...... 3.17 Commerce is also issuing this notice merchandise, and therefore overstated Perfiles LM, S.A. de C.V.7 ...... 3.17 to correct an inadvertent error in the the adjustment to Maquilacero’s total Productos Laminados de Final Results related to Hylsa S.A. de cost of manufacturing for prime, in- Monterrey S.A. de C.V ...... 3.17 C.V. (Hylsa), a non-examined scope merchandise. Accordingly, Regiomontana de Perfiles y 8 respondent in this administrative Commerce determines that, in Tubos S.A. de C.V ...... 3.40 Talleres Acero Rey S.A. de C.V 3.17 review. Specifically, Commerce granted accordance with section 751(h) of the a non-examined rate to Hylsa as well as Ternium Mexico S.A. de C.V ...... 3.17 Act and 19 CFR 351.224(f), it made a Tuberia Laguna, S.A. de C.V ..... 3.17 to Ternium Mexico S.A. de C.V. ministerial error in the Final Results. Tuberias Aspe ...... 3.17 (Ternium); however, Commerce failed to Pursuant to 19 CFR 351.224(e), Tuberias y Derivados S.A de take into account the completion of a Commerce is amending the Final C.V ...... 3.17 changed circumstances review on the Results to reflect the correction of this antidumping duty order on light-walled Disclosure rectangular pipe and tube from Mexico.3 ministerial error in the calculation of In the changed circumstances review, the final weighted-average dumping We intend to disclose the calculation Commerce determined that Ternium is margin assigned to Maquilacero, which performed for these amended final the successor-in-interest to Hylsa.4 As changes from 3.12 percent to 2.82 results in accordance with 19 CFR such, effective August 18, 2009, Hylsa is percent.6 Furthermore, we are revising 351.224(b). entitled to Ternium’s antidumping duty the review-specific weighted-average Antidumping Duty Assessment cash deposit rate with respect to entries dumping margin applicable to the Pursuant to section 751(a)(2)(C) of the of subject merchandise, and only companies not selected for individual Act and 19 CFR 351.212(b)(1), Ternium should have been assigned a examination in this administrative Commerce has determined, and U.S. non-examined rate in the Final Results. review, which is based, in part, on Maquilacero’s weighted-average Customs and Border Protection (CBP) Legal Framework shall assess, antidumping duties on all dumping margin. appropriate entries of subject A ministerial error, as defined in Amended Final Results of the Review merchandise in accordance with these section 751(h) of the Tariff Act of 1930, amended final results of the as amended (the Act), includes ‘‘errors As a result of correcting the administrative review. In accordance in addition, subtraction, or other ministerial error and the inadvertent with 19 CFR 351.212(b)(1), Maquilacero arithmetic function, clerical errors error described above, Commerce reported the entered value of its U.S. resulting from inaccurate copying, determines that, for the period of sales such that we calculated importer- duplication, or the like, and any other August 1, 2017 through July 31, 2018, specific ad valorem antidumping duty type of unintentional error which the the following weighted-average assessment rates based on the ratio of administering authority considers dumping margins exist: the total amount of dumping calculated ministerial.’’ 5 With respect to final for the examined sales for each importer results of administrative reviews, 19 to the total entered value of the sales for CFR 351.224(e) provides that Commerce each importer for which entered value ‘‘will analyze any comments received 6 See Memorandum, ‘‘Ministerial Error was reported. Where an importer- and, if appropriate, correct any Memorandum for the Final Results of the 2017– specific rate is zero or de minimis 2018 Antidumping Duty Administrative Review of within the meaning of 19 CFR 1 See Light-Walled Rectangular Pipe and Tube Light-Walled Rectangular Pipe and Tube from from Mexico: Final Results of Antidumping Duty Mexico,’’ dated concurrently with this notice. 351.106(c)(1), Commerce will instruct Administrative Review and Final Determination of 7 See Light-Walled Rectangular Pipe and Tube CBP to liquidate the appropriate entries No Shipments; 2017–2018, 85 FR 21829 (April 20, from Mexico: Initiation and Expedited Preliminary without regard to antidumping duties. 2020) (Final Results). Results of Changed Circumstances Review, 82 FR For the companies which were not 2 See Maquilacero’s Letter, ‘‘Light-Walled 54322 (November 17, 2017), unchanged in Light- selected for individual examination, we Rectangular Pipe and Tube from Mexico; Walled Rectangular Pipe and Tube from Mexico: Maquilacero S.A. de C.V.’s Ministerial Error will instruct CBP to assess antidumping Final Results of Changed Circumstances Review, 83 Comments for the Final Results,’’ dated April 30, duties at an ad valorem assessment rate 2020. FR 13475 (March 29, 2018) (determining that equal to the weighted-average dumping 3 See Final Results of Antidumping Duty Changed Perfiles LM, S.A. de C.V. is the successor-in-interest margin determined in these amended to Perfiles y Herrajes). Circumstances Review: Light-Walled Rectangular final results. The amended final results Pipe and Tube from Mexico, 74 FR 41680 (August 8 The weighted-average dumping margin for 18, 2009). Regiomontana de Perfiles y Tubos S.A. de C.V.’s of this review shall be the basis for the 4 Id. (Regiopytsa), another mandatory respondent in this assessment of antidumping duties on 5 See 19 CFR 351.224(f). review, is unchanged from the Final Results. entries of merchandise covered by the

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amended final results of this review and requirements, when imposed, shall CIT) sustained the final results of for future deposits of estimated duties, remain in effect until further notice. redetermination pertaining to the less- where applicable.9 than-fair-value (LTFV) investigation of Notification to Importers Commerce’s ‘‘automatic assessment’’ certain cold-drawn mechanical tubing of This notice also serves as a final carbon and alloy steel (cold-drawn will apply to entries of subject reminder to importers of their merchandise during the POR produced mechanical tubing) from India. The responsibility under 19 CFR Department of Commerce (Commerce) is by companies included in these final 351.402(f)(2) to file a certificate results of review for which the reviewed notifying the public that the final regarding the reimbursement of judgment in this case is not in harmony companies did not know that the antidumping duties prior to liquidation with the final determination in the merchandise they sold to the of the relevant entries during this POR. LTFV investigation, and that Commerce intermediary (e.g., a reseller, trading Failure to comply with this requirement is amending the final determination and company, or exporter) was destined for could result in the Secretary’s resulting antidumping duty (AD) order the United States. In such instances, we presumption that reimbursement of with respect to the dumping margin will instruct CBP to liquidate antidumping duties occurred and the assigned to Goodluck India Limited unreviewed entries at the all-others rate subsequent assessment of doubled (Goodluck). We are also revoking the if there is no rate for the intermediate antidumping duties. AD order, in part, with respect to company(ies) involved in the Goodluck. transaction.10 Administrative Protective Order This notice also serves as a reminder DATES: Applicable May 10, 2020. Cash Deposit Requirements to parties subject to administrative FOR FURTHER INFORMATION CONTACT: Jerry Huang, AD/CVD Operations, Office V, The following cash deposit protective orders (APO) of their Enforcement and Compliance, requirements will be effective responsibility concerning the disposition of proprietary information International Trade Administration, retroactively for all shipments of subject U.S. Department of Commerce, 1401 merchandise that entered, or withdrawn disclosed under APO in accordance with 19 CFR 351.305(a)(3), which Constitution Avenue NW, Washington, from warehouse, for consumption on or DC 20230; telephone: (202) 482–4047. after April 20, 2020, the date of continues to govern business SUPPLEMENTARY INFORMATION: publication of the Final Results of this proprietary information in this segment administrative review, as provided for of the proceeding. Timely written Background by section 751(a)(2)(C) of the Act: (1) notification of return or destruction of APO materials or conversion to judicial On April 16, 2018, Commerce The cash deposit rate for the companies published its Final Determination in the listed above will be equal to the protective order is hereby requested. Failure to comply with the regulations LTFV investigation of cold-drawn weighted-average dumping margin 1 and the terms of an APO is a mechanical tubing from India. In the established in these amended final sanctionable violation. Final Determination, Commerce applied results of review; (2) for producers or a rate based on adverse facts available exporters not covered in this review but Notification to Interested Parties to Goodluck after finding that the covered in a prior segment of the The amended final results and notice company failed to accurately report proceeding, the cash deposit rate will are issued and published in accordance product ‘‘control numbers’’ in its home continue to be the company-specific rate with sections 751(h) and 777(i) of the market sales and cost of production published for the most recently Act and 19 CFR 351.224(e). databases.2 Although Goodluck completed segment of this proceeding; attempted to submit new databases at Dated: May 20, 2020. (3) if the exporter is not a firm covered the start of verification of Goodluck’s in this review or another completed Jeffrey I. Kessler, questionnaire responses, Commerce segment of this proceeding, but the Assistant Secretary for Enforcement and declined to accept the revised producer is, then the cash deposit rate Compliance. information, determining that such a will be the rate established for the most [FR Doc. 2020–11324 Filed 5–26–20; 8:45 am] revision did not constitute a ‘‘minor recently completed segment of this BILLING CODE 3510–DS–P correction.’’ 3 On June 11, 2018, proceeding for the producer of the Commerce published its AD order on merchandise; and (4) if neither the cold-drawn mechanical tubing from DEPARTMENT OF COMMERCE exporter nor the producer is a firm India.4 covered in this or any previously International Trade Administration On August 13, 2019, the CIT completed segment of this proceeding, remanded the Final Determination to then the cash deposit rate will be the [A–533–873] Commerce and instructed Commerce to consider the revised databases provided all-others rate of 3.76 percent Certain Cold-Drawn Mechanical Tubing established in the amended final of Carbon and Alloy Steel From India: 1 See Certain Cold-Drawn Mechanical Tubing of determination of the less-than-fair-value Notice of Court Decision Not in investigation.11 These cash deposit Carbon and Alloy Steel from India: Final Harmony With Final Determination of Affirmative Determination of Sales at Less than Fair Sales at Less Than Fair Value; Notice Value, 83 FR 16296 (April 16, 2018) (Final 9 See section 751(a)(2)(C) of the Act. of Amended Final Determination Determination) and accompanying Issues and 10 For a full discussion of this practice, see Decision Memorandum (IDM). Antidumping and Countervailing Duty Proceedings: Pursuant to Court Decision; and Notice 2 See IDM at Comments 1 and 2. Assessment of Antidumping Duties, 68 FR 23954 of Revocation of Antidumping Duty 3 Id. at Comment 1. (May 6, 2003). Order, in Part 4 See Certain Cold-Drawn Mechanical Tubing of 11 See Light-Walled Rectangular Pipe and Tube Carbon and Alloy Steel From the People’s Republic from Mexico, the People’s Republic of China, and AGENCY: Enforcement and Compliance, of China, the Federal Republic of Germany, India, the Republic of Korea: Antidumping Duty Orders; International Trade Administration, Italy, the Republic of Korea, and Switzerland: Light-Walled Rectangular Pipe and Tube from the Department of Commerce. Antidumping Duty Orders; and Amended Final Republic of Korea: Notice of Amended Final Determinations of Sales at Less Than Fair Value for Determination of Sales at Less Than Fair Value, 73 SUMMARY: On April 30, 2020, the United the People’s Republic of China and Switzerland, 83 FR 45403 (August 5, 2008). States Court of International Trade (the FR 26962 (June 11, 2018) (AD Order).

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by Goodluck.5 On remand, and under Weighted- and upheld by the CAFC, Commerce respectful protest, Commerce issued its average will instruct CBP to terminate the final results of redetermination in Producer and exporter dumping suspension of liquidation and to 6 margin accordance with the Court’s order. In (percent) liquidate entries produced and exported calculating an AD margin for Goodluck, by Goodluck without regard to Commerce relied on the corrections Goodluck India Limited ...... 0.00 antidumping duties. provided by Goodluck. On April 30, Notification to Interested Parties 2020, the CIT sustained Commerce’s Partial Exclusion from Antidumping Final Remand Redetermination.7 Duty Order This notice is issued and published in accordance with sections 516A(c)(1) and Timken Notice Pursuant to section 735(a)(4) of the (e) of the Act. 8 Act, Commerce ‘‘shall disregard any In its decision in Timken, as clarified Dated: May 19, 2020. 9 weighted average dumping margin that by Diamond Sawblades, the Court of Jeffrey I. Kessler, Appeals for the Federal Circuit (CAFC) is de minimis as defined in section 733(b)(3) of the Act.’’ 11 Furthermore, Assistant Secretary for Enforcement and held that, pursuant to section 516A of Compliance. the Tariff Act of 1930, as amended (the section 735(c)(2) of the Act states that [FR Doc. 2020–11325 Filed 5–26–20; 8:45 am] Act), Commerce must publish a notice ‘‘the investigation shall be terminated of a court decision that is not ‘‘in upon publication of that negative BILLING CODE 3510–DS–P harmony’’ with a Commerce determination’’ and Commerce shall ‘‘terminate the suspension of determination and must suspend DEPARTMENT OF COMMERCE liquidation of entries pending a liquidation’’ and ‘‘release any bond or ‘‘conclusive’’ court decision. The CIT’s other security, and refund any cash National Institute of Standards and April 30, 2020 judgment sustaining the deposit.’’ 12 As a result of this amended Technology Final Remand Redetermination final determination, in which constitutes a final decision of the CIT Commerce has calculated an estimated [Docket Number 200429–0124] weighted-average dumping margin of that is not in harmony with Commerce’s Profile of Responsible Use of 0.00 percent for Goodluck, Commerce is Final Determination. This notice is Positioning, Navigation, and Timing hereby excluding merchandise published in fulfillment of the Services publication requirements of Timken. produced and exported by Goodluck from the AD Order. Accordingly, AGENCY: National Institute of Standards Amended Final Determination Commerce will direct U.S. Customs and and Technology, U.S. Department of Because there is now a final court Border Protection (CBP) to release any Commerce. decision, Commerce is amending its bonds or other security and refund cash ACTION: Request for information. Final Determination with respect to deposits pertaining to any suspended Goodluck.10 Goodluck’s revised entries from Goodluck. Pursuant to SUMMARY: The National Institute of dumping margin is as follows: Timken, the suspension of liquidation Standards and Technology (NIST) is must continue during the pendency of seeking information about public and 5 See Goodluck India Limited v. United States, the appeals process. Additionally, we private sector use of positioning, Court No. 18–00162, Slip Op. 19–110 (CIT August will instruct CBP to suspend liquidation navigation, and timing (PNT) services, 13, 2019) (Remand Order). and standards, practices, and 6 See Final Results of Redetermination Pursuant of all unliquidated entries from to Court Remand, Goodluck India Limited v. United Goodluck at a cash deposit rate of 0.00 technologies used to manage States, Court No. 18–00162, Slip Op. 19–110 (CIT percent which are entered, or cybersecurity risks, to systems, August 13, 2019), dated December 23, 2019 (Final withdrawn from warehouse, for networks, and assets dependent on PNT Remand Redetermination). services. Executive Order 13905, 7 consumption on or after May 10, 2020, See Goodluck India Limited v. United States, Strengthening National Resilience Court No. 18–00162, Slip Op. 20–57 (CIT April 30, which is ten days after the CIT’s final 2020). decision, in accordance with section Through Responsible Use of 8 See Timken Co. v. United States, 893 F.2d 337 516A of the Act.13 In the event the CIT’s Positioning, Navigation, and Timing (Fed. Cir. 1990) (Timken). ruling is not appealed, or if appealed Services, was issued on February 12, 9 See Diamond Sawblades Mfrs. Coalition v. 2020 and seeks to protect the national United States, 626 F.3d 1374 (Fed. Cir. 2010) and economic security of the United (Diamond Sawblades). Determination, 83 FR at 16296–97; AD Order, 83 FR 10 For purposes of this notice, the all-others rate at 26964. States from disruptions to PNT services for the AD Order will not be amended. Section 11 Section 733(b)(3) of the Act defines de minimis that are vital to the functioning of 735(c)(5)(A) of the Act provides that the estimated dumping margin as ‘‘less than 2 percent ad valorem technology and infrastructure, including all-others rate shall be an amount equal to the or the equivalent specific rate for the subject the electrical power grid, weighted average of the estimated weighted-average merchandise.’’ dumping margins established for exporters and 12 See sections 735(c)(2)(A) and (B) of the Act. communications infrastructure and producers individually investigated, excluding any 13 See, e.g., Drill Pipe from the People’s Republic mobile devices, all modes of zero or de minimis margins, and any margins of China: Notice of Court Decision Not in Harmony transportation, precision agriculture, determined entirely under section 776 of the Act. with International Trade Commission’s Injury weather forecasting, and emergency As discussed above, Goodluck’s margin has been Determination, Revocation of Antidumping and changed from a rate determined entirely under Countervailing Duty Orders Pursuant to Court response. section 776 of the Act to zero. Therefore, Tube Decision, and Discontinuation of Countervailing Under Executive Order 13905, the Products of India, Ltd. a unit of Tube Investments Duty Administrative Review, 79 FR 78037, 78038 Secretary of Commerce, in coordination of India Limited (collectively, TPI) remains the only (December 29, 2014); High Pressure Steel Cylinders with the heads of the Sector Specific respondent in the underlying investigation for From the People’s Republic of China: Notice of which Commerce calculated a company-specific Court Decision Not in Harmony With Final Agencies and in consultation, as rate which is not zero, de minimis or based entirely Determination in Less Than Fair Value appropriate, with the private sector, is on facts available. As a result, pursuant to section Investigation, Notice of Amended Final directed to develop and make available, 735(c)(5)(A) of the Act, the weighted-average Determination Pursuant to Court Decision, Notice of to at least the appropriate agencies and dumping margin calculated for TPI continues to be Revocation of Antidumping Duty Order in Part, and the estimated weighted-average dumping margin Discontinuation of Fifth Antidumping Duty private sector users, PNT profiles. assigned to all other producers and exporters of the Administrative Review, 82 FR 46758, 46760 Responses to this Request for merchandise under consideration. See Final (October 6, 2017). Information (RFI) will inform NIST’s

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development of a PNT profile, using the McCarthy, National Institute of cybersecurity risks to the systems, NIST Framework for Improving Critical Standards and Technology, email networks, and assets dependent on PNT Infrastructure Cybersecurity (NIST [email protected]. Please direct services. This profile will be developed Cybersecurity Framework), that will media inquiries to NIST’s Office of using an open and collaborative process enable the public and private sectors to Public Affairs at (301) 975–2762. involving public and private sector identify systems, networks, and assets SUPPLEMENTARY INFORMATION: As stated stakeholders to ensure critical dependent on PNT services; identify in Executive Order 13905, infrastructure owners and operators, appropriate PNT services; detect the Strengthening National Resilience government agencies, and others can disruption and manipulation of PNT Through Responsible Use of inform the responsible use of PNT services; and manage the associated Positioning, Navigation, and Timing services and effectively adopt, refine, cybersecurity risks to the systems, Services,1 the national and economic and implement the profile. networks, and assets dependent on PNT security of the United States depends on This RFI outlines the information services. the reliable and efficient functioning of NIST is seeking from the public to DATES: Comments must be received by critical infrastructure. Since the United inform the development of a profile of 5:00 p.m. Eastern time on July 13, 2020. States made the Global Positioning PNT services that will strengthen Written comments in response to the System available worldwide, national resilience of U.S. critical RFI should be submitted according to positioning, navigation, and timing infrastructure and other industries that the instructions in the ADDRESSES and (PNT) services provided by space-based rely on PNT services. SUPPLEMENTARY INFORMATION sections systems have become a largely invisible Request for Information utility for technology and infrastructure, below. Submissions received after that The following questions cover the date may not be considered. including the electrical power grid, communications infrastructure and major areas about which NIST seeks ADDRESSES: Comments may be comment. They are not intended to limit submitted by any of the following mobile devices, all modes of transportation, precision agriculture, the topics that may be addressed. methods: Responses may include any topic • weather forecasting, and emergency Electronic submission: Submit believed to have implications for the electronic public comments via the response. Due to the widespread adoption of PNT services, the disruption development of a PNT profile, Federal e-Rulemaking Portal. regardless of whether the topic is 1. Go to www.regulations.gov and or manipulation of these services has the potential to adversely affect the included in this document. enter NIST–2020–0002 in the search All relevant responses that comply field, national and economic security of the United States. To strengthen national with the requirements listed in the 2. Click the ‘‘Comment Now!’’ icon, DATES and ADDRESSES sections of this complete the required fields, and resilience, the Federal Government must foster the responsible use of PNT RFI will be considered. 3. Enter or attach your comments. When addressing the topics below, • services by critical infrastructure Email: Comments in electronic form commenters may address the practices owners and operators. may also be sent to [email protected] of their organization or a group of in any of the following formats: HTML; Under Executive Order 13905, the Secretary of Commerce, in coordination organizations with which they are ASCII; Word; RTF; or PDF. familiar. If desired, commenters may Please submit comments only and with the heads of the Sector Specific Agencies and in consultation, as provide information about the type, include your name, organization’s name size, and location of the organization(s). (if any), and cite ‘‘Profile of Responsible appropriate, with the private sector, is directed to develop and make available, Provision of such information is Use of PNT Services’’ in all optional and will not affect NIST’s full correspondence. Comments containing to at least the appropriate agencies and private sector users, PNT profiles. NIST consideration of the comment. references, studies, research, and other Comments containing references, will leverage the Cybersecurity empirical data that are not widely studies, research, and other empirical Framework 2 to develop a foundational published should include copies of the data that are not widely published PNT profile 3 to help organizations referenced materials. should include copies of the referenced identify systems, networks, and assets All submissions, including materials. All submissions, including dependent on PNT services; 4 identify attachments and other supporting attachments and other supporting appropriate PNT services; detect the materials, will become part of the public materials, will become part of the public disruption and manipulation of PNT record and subject to public disclosure. record and subject to public disclosure. services; and manage the associated NIST reserves the right to publish NIST reserves the right to publish relevant comments publicly, unedited relevant comments publicly, unedited 1 Exec. Order No. 13905, Strengthening National and in their entirety. All relevant and in their entirety. All relevant comments received in response to the Resilience Through Responsible Use of Positioning, Navigation, and Timing Services, 85 FR 9359 (Feb. comments received in response to the RFI will be made publicly available at 18, 2020). RFI will be made publicly available at https://www.nist.gov/itl/pnt. Personal 2 https://www.nist.gov/cyberframework. https://www.nist.gov/itl/pnt. Personal 3 information, such as account numbers For the purposes of this RFI, NIST is using the information, such as account numbers definition of ‘‘PNT profile’’ as defined in Exec. or Social Security numbers, or names of or Social Security numbers, or names of other individuals, should not be Order No. 13905. ‘‘PNT profile’’ means a description of the responsible use of PNT services— other individuals, should not be included. Do not submit confidential aligned to standards, guidelines, and sector-specific included. Do not submit confidential business information, or otherwise requirements—selected for a particular system to business information, or otherwise address the potential disruption or manipulation of sensitive or protected information. sensitive or protected information. Comments that contain profanity, PNT services. 4 Comments that contain profanity, vulgarity, threats, or other inappropriate For the purposes of this RFI, NIST is using the definition of ‘‘PNT services’’ as defined in Exec. vulgarity, threats, or other inappropriate language or content will not be Order No. 13905. ‘‘PNT services’’ means any language or content will not be considered. system, network, or capability that provides a reference to calculate or augment the calculation of considered. FOR FURTHER INFORMATION CONTACT: For longitude, latitude, altitude, or transmission of time NIST is seeking the following questions about this RFI contact: Jim or frequency data, or any combination thereof. information from PNT technology

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vendors, users of PNT services and Paperwork Reduction Act of 1995 II. Method of Collection other key stakeholders for the purpose (PRA), invites the general public and of gathering information to foster the other Federal agencies to comment on Information will be collected responsible use of PNT services: proposed, and continuing information electronically. 1. Describe any public or private collections, which helps us assess the III. Data sector need for and/or dependency on impact of our information collection the use of positioning, navigation, and requirements and minimize the public’s OMB Control Number: 0693–0021. timing, or any combination of these, reporting burden. The purpose of this Form Number(s): None. services. notice is to allow for 60 days of public Type of Review: Revision and 2. Identify and describe any impacts comment preceding submission of the extension of a current information to public or private sector operations if collection to OMB. PNT services are disrupted or collection. DATES: To ensure consideration, manipulated. Affected Public: Business or other for- comments regarding this proposed 3. Identify any standards, guidance, profit organizations. industry practices and sector specific information collection must be received on or before July 27, 2020. Estimated Number of Respondents: requirements referenced in association 13,000. with managing public or private sector ADDRESSES: Interested persons are cybersecurity risk to PNT services. invited to submit written comments by Estimated Time Per Response: 12 4. Identify and describe any processes mail to Maureen O’Reilly, Management minutes. or procedures employed by the public Analyst, NIST at PRAcomments@ Estimated Total Annual Burden or private sector to manage doc.gov. Please reference OMB Control Hours: 2,600. cybersecurity risks to PNT services. Number 0693–0021 in the subject line of Estimated Total Annual Cost to 5. Identify and describe any your comments. Do not submit Public: 0. approaches or technologies employed Confidential Business Information or by the public or private sector to detect otherwise sensitive or protected Respondent’s Obligation: Voluntary. disruption or manipulation of PNT information. IV. Request for Comments services. 6. Identify any processes or FOR FURTHER INFORMATION CONTACT: We are soliciting public comments to procedures employed in the public or Requests for additional information or permit the Department/Bureau to: (a) private sector to manage the risk that specific questions related to collection Evaluate whether the proposed disruption or manipulation to PNT activities should be directed to Megean information collection is necessary for services pose. Blum, NIST MEP, 301–975–3160, the proper functions of the Department, 7. Identify and describe any [email protected] including whether the information will approaches, practices, and/or SUPPLEMENTARY INFORMATION: have practical utility; (b) Evaluate the technologies used by the public or I. Abstract accuracy of our estimate of the time and private sector to recover or respond to cost burden for this proposed collection, PNT disruptions. Sponsored by NIST, the including the validity of the 8. Any other comments or suggestions Manufacturing Extension Partnership methodology and assumptions used; (c) related to the responsible use of PNT (MEP) is a national network of locally Evaluate ways to enhance the quality, services. based manufacturing extension centers utility, and clarity of the information to Authority: Exec. Order No. 13905, working with small manufacturers to be collected; and (d) Minimize the Strengthening National Resilience Through assist them improve their productivity, reporting burden on those who are to Responsible Use of Positioning, Navigation, improve profitability and enhance their respond, including the use of automated and Timing Services, 85 FR 9359 (Feb. 18, economic competitiveness. The collection techniques or other forms of 2020). information collected will provide the information technology. Kevin A. Kimball, MEP with information regarding MEP Comments that you submit in Chief of Staff. Center performance regarding the response to this notice are a matter of [FR Doc. 2020–11282 Filed 5–26–20; 8:45 am] delivery of technology, and business public record. We will include or solutions to U.S.-based manufacturers. BILLING CODE 3510–13–P summarize each comment in our request The collected information will assist in to OMB to approve this ICR. Before determining the performance of the including your address, phone number, DEPARTMENT OF COMMERCE MEP Centers at both local and national email address, or other personal levels, provide information critical to identifying information in your National Institute of Standards and monitoring and reporting on MEP comment, you should be aware that Technology programmatic performance, and assist your entire comment—including your management in policy decisions. personal identifying information—may Agency Information Collection Responses to the collection of Activities; Submission to the Office of be made publicly available at any time. information are mandatory per the While you may ask us in your comment Management and Budget (OMB) for regulations governing the operation of Review and Approval; Comment to withhold your personal identifying the MEP Program (15 CFR parts 290, information from public review, we Request; NIST MEP Client Impact 291, 292, and H.R. 1274—section 2). Survey cannot guarantee that we will be able to The information collected will include do so. AGENCY: National Institute of Standards MEP Customer inputs regarding their and Technology (NIST), Commerce. sales, costs, investments, and Sheleen Dumas, ACTION: Notice of information collection, employment. Customers will take the Department PRA Clearance Officer, Office of request for comment. survey online. Customers will only be the Chief Information Officer, Commerce surveyed once per year under this Department. SUMMARY: The Department of collection. Data collected in this survey [FR Doc. 2020–11344 Filed 5–26–20; 8:45 am] Commerce, in accordance with the is confidential. BILLING CODE 3510–13–P

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DEPARTMENT OF COMMERCE the monitored individuals when Section 3003(d) of the America requested and to the NRC annually. This COMPETES Act (Pub. L. 110–69), as National Institute of Standards and form will be used to ensure the correct amended by the American Innovation Technology information is provided to the and Competitiveness Act, Public Law individual. 114–329 sec. 501 (2017), and codified at Agency Information Collection Affected Public: Individuals. 15 U.S.C. 278k(m), in accordance with Activities; Submission to the Office of Frequency: On occasion. the provisions of the Federal Advisory Management and Budget (OMB) for Respondent’s Obligation: Mandatory. Committee Act, as amended, 5 U.S.C. Review and Approval; Comment Legal Authority: 10 CFR 20.1502 and App. The Hollings Manufacturing Request; Form NIST–366A: Request 10 CFR 20.2106. Extension Partnership Program for Personal Radiation Monitoring This information collection request (Program) is a unique program Services may be viewed at www.reginfo.gov. consisting of Centers in all 50 states and Follow the instructions to view the The Department of Commerce will Puerto Rico with partnerships at the Department of Commerce collections federal, state and local levels. By statute, submit the following information currently under review by OMB. collection request to the Office of the MEP Advisory Board provides the Written comments and NIST Director with: (1) Advice on the Management and Budget (OMB) for recommendations for the proposed review and clearance in accordance activities, plans and policies of the information collection should be Program; (2) assessments of the with the Paperwork Reduction Act of submitted within 30 days of the soundness of the plans and strategies of 1995, on or after the date of publication publication of this notice on the the Program; and (3) assessments of of this notice. We invite the public and following website www.reginfo.gov/ current performance against the plans of other Federal agencies to comment on public/do/PRAMain. Find this the Program. proposed, and continuing information particular information collection by Background information on the MEP collections, which helps us assess the selecting ‘‘Currently under 30-day Advisory Board is available at http:// impact of our information collection Review—Open for Public Comments’’ or www.nist.gov/mep/about/advisory- requirements and minimize the public’s by using the search function and board.cfm. reporting burden. Public comments entering the title of the collection. Pursuant to the Federal Advisory were previously requested via the Sheleen Dumas, Committee Act, as amended, 5 U.S.C. Federal Register on March 6, 2020 App., notice is hereby given that the Department PRA Clearance Officer, Office of during a 60-day comment period. This MEP Advisory Board will hold an open notice allows for an additional 30 days the Chief Information Officer, Commerce Department. meeting on Wednesday, June 3, 2020, for public comments. from 1 p.m. to 5 p.m. Eastern Daylight [FR Doc. 2020–11345 Filed 5–26–20; 8:45 am] Agency: National Institute of Time. The meeting agenda will include Standards and Technology, U.S. BILLING CODE 3510–13–P an update on the MEP programmatic Department of Commerce. operations, as well as provide guidance Title: NIST 366–A Form: Request for DEPARTMENT OF COMMERCE and advice on current activities related Personal Radiation Monitoring Services. to the MEP National NetworkTM 2017– OMB Control Number: 0693–XXXX. National Institute of Standards and 2022 Strategic Plan. The final agenda Form Number(s): NIST–366A. Technology will be posted on the MEP Advisory Type of Request: Regular submission, Board website at http://www.nist.gov/ information collection. Manufacturing Extension Partnership mep/about/advisory-board.cfm. Number of Respondents: 600. Advisory Board Individuals and representatives of Average Hours per Response: 15 organizations who would like to offer minutes. AGENCY: National Institute of Standards comments and suggestions related to the Burden Hours: 150 hours. and Technology, Commerce. MEP Advisory Board’s business are Needs and Uses: This request is to ACTION: Notice of open meeting. invited to request a place on the agenda. seek clearance for the collection of SUMMARY: The National Institute of Approximately 15 minutes will be routine information requested of Standards and Technology (NIST) reserved for public comments at the end individuals (including but not limited to announces that the Manufacturing of the meeting. Speaking times will be federal employees, visitors, contractors, Extension Partnership (MEP) Advisory assigned on a first-come, first-served associates) who work with or around Board will hold an open meeting on basis. The amount of time per speaker sources of ionizing radiation on the Wednesday, June 3, 2020. will be determined by the number of NIST campus. requests received, but is likely to be no DATES: The information is collected for the The meeting will be held more than three to five minutes each. following purposes: Wednesday, June 3, 2020 from 1 p.m. to Requests must be submitted by email to (1) NIST is required by 10 CFR 5 p.m. Eastern Daylight Time. [email protected] and must be 20.1502 to monitor individuals who ADDRESSES: The meeting will be a received by May 27, 2020 to be may be exposed to ionizing radiation virtual meeting via webinar. Please note considered. The exact time for public above specific levels. This form will be admittance instructions under the comments will be included in the final used to collect information associated SUPPLEMENTARY INFORMATION section of agenda that will be posted on the MEP with this monitoring and to determine this notice. Advisory Board website at http:// the type of monitoring required. FOR FURTHER INFORMATION CONTACT: www.nist.gov/mep/about/advisory- (2) NIST is required by 10 CFR Cheryl L. Gendron, Manufacturing board.cfm. Questions from the public 20.2106 to maintain records of radiation Extension Partnership, National will not be considered during this exposure monitoring. This form will be Institute of Standards and Technology, period. Speakers who wish to expand used to ensure the exposure information telephone number 301–975–2785; upon their oral statements, those who collected is properly associated with the email: [email protected]. wished to speak but could not be individual using unique identifiers. In SUPPLEMENTARY INFORMATION: The MEP accommodated on the agenda or those addition, NIST must provide reports to Advisory Board is authorized under who are/were unable to attend the

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meeting are invited to submit written minutes, harassment and intimidation— of 100-percent at-sea monitoring of the statements electronically by email to 1 hour, compliance reports—20 catch share program. [email protected]. minutes, catch reports—15 minutes, Vessel operators would be required to Admittance Instructions: All feedback to vessel—10 minutes, data submit a logbook reporting their participants will be attending via storage—15 minutes); debrief of EM discards of IFQ species. NMFS would webinar. Please contact Ms. Gendron at staff—2 hours 45 minutes. use the logbook data to debit discards of 301–975–2785 or cheryl.gendron@ Vessel owners: Initial application—30 IFQ species from IFQs and cooperative nist.gov for detailed instructions on how minutes; final application (updated allocations, and use the EM data to to join the webinar. All requests must be application, EM system certification, audit the logbook data. EM data would received by 5 p.m. Eastern Daylight tentative fishing plan, vessel monitoring also be used to monitor compliance Time, Thursday, May 28, 2020. plan)—8 hours 40 minutes; changes to with the requirements of the catch share vessel monitoring plan—1 hour; program. Vessel operators would be Kevin A. Kimball, appeal—4 hours; annual EM required to submit a logbook reporting Chief of Staff. authorization renewal—30 minutes. their discards of IFQ species. [FR Doc. 2020–11281 Filed 5–26–20; 8:45 am] Vessel operators: One-time online EM New requirements being added to this BILLING CODE 3510–13–P training provided by NMFS 1 hour 30 collection include: minutes; federal discard logbook for EM Service Providers will be required each landing; hard drive submission— to submit catch reports and feedback DEPARTMENT OF COMMERCE 10 minutes. reports, and store EM data and other Total Annual Burden Hours: 5,120. records. National Oceanic and Atmospheric Needs and Uses: The National Marine Vessel Owners will be required to Administration Fisheries Service (NMFS) published a obtain services from an NMFS- final rule on June 28, 2019 (84 FR permitted EM service provider to Agency Information Collection 31146), to implement an electronic analyze and store EM data, and report Activities; Submission to the Office of monitoring (EM) program for two it to NMFS. Management and Budget (OMB) for sectors of the limited entry trawl Affected Public: Business or other for- Review and Approval; Comment fishery, consistent with the Magnuson- profit organizations. Request; West Coast Region Stevens Fishery Conservation and Groundfish Trawl Fishery Electronic Management Act (MSA) and the Pacific Frequency: Annual and periodic. Monitoring Program Coast Groundfish Fishery Management Respondent’s Obligation: Mandatory. Plan (FMP). The action allows catcher Legal Authority: 50 CFR 660.603(b)(1) The Department of Commerce will and 660.604(b)(1) in the final rule 0648– submit the following information vessels in the Pacific whiting fishery and fixed gear vessels in the shorebased BF52. collection request to the Office of This information collection request Management and Budget (OMB) for Individual Fishing Quota (IFQ) fishery to use EM in place of observers to meet may be viewed at www.reginfo.gov. review and clearance in accordance Follow the instructions to view the with the Paperwork Reduction Act of the requirements of the Trawl Rationalization Program for 100-percent Department of Commerce collections 1995, on or after the date of publication currently under review by OMB. of this notice. We invite the general at-sea observer coverage. This action is necessary to increase operational Written comments and public and other Federal agencies to recommendations for the proposed comment on proposed, and continuing flexibility and reduce monitoring costs for vessels in the trawl fishery by information collection should be information collections, which helps us submitted within 30 days of the assess the impact of our information providing an alternative to observers. Under this collection, some catcher publication of this notice on the collection requirements and minimize vessels will have the option to use EM following website www.reginfo.gov/ the public’s reporting burden. Public in place of observers to reduce total fleet public/do/PRAMain. Find this comments were previously requested monitoring costs to levels sustainable particular information collection by via the Federal Register on February 18, for the fleet and agency and meet the selecting ‘‘Currently under 30-day 2020, during a 60-day comment period. requirements for 100-pecent observer Review—Open for Public Comments’’ or This notice allows for an additional 30 coverage at-sea. In place of an observer by using the search function and days for public comments. documenting discards onboard, captains entering either the title of the collection Agency: National Oceanic & or the OMB Control Number 0648–0785. Atmospheric Administration. would report estimates of their own Title: West Coast Region Groundfish discards on a logbook and submit them Sheleen Dumas, Trawl Fishery Electronic Monitoring to NMFS. NMFS would use the discards Department PRA Clearance Officer, Office of Program. reported on the logbook to debit the Chief Information Officer, Commerce OMB Control Number: 0648–0785. allocations in the Vessel Accounting Department. Form Number(s): None. System (VAS) and North Pacific [FR Doc. 2020–11350 Filed 5–26–20; 8:45 am] Database Program (NorPac). They would Type of Request: Regular submission BILLING CODE 3510–22–P (Revision and extension to an existing also install and carry and EM system to information collection). capture fishing activities at-sea. Number of Respondents: 174. Following the trip, an analyst would DEPARTMENT OF COMMERCE Average Hours per Response: review the video and report estimates of EM service providers: Application discards of allocated species to NMFS to National Oceanic and Atmospheric (application form, EM service plan, use to audit the validity of the logbook Administration submission of EM units)—5 hours; estimates. The EM data would also be application renewals (biennial)—1 hour; used to monitor compliance with the [RTID 0648–XR092] EM service provider appeal—4 hours; requirements of the catch share Marine Mammals; File No. 23188 EM service plan changes—2 hours; EM program. In this way, logbooks and EM system certification—30 minutes; systems would be used in tandem in AGENCY: National Marine Fisheries reports (technical assistance—20 place of observers to meet the objectives Service (NMFS), National Oceanic and

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Atmospheric Administration (NOAA), 32,110 individuals may be harassed Information and Education Committee; Commerce. during research. Five unintentional Dolphin Wahoo Committee; Snapper ACTION: Notice; receipt of application. mortalities related to research and up to Grouper Committee; Southeast Data, 10 directed mortalities for euthanasia of Assessment and Review (SEDAR) SUMMARY: Notice is hereby given that moribund or orphaned pups, are Committee; Citizen Science Committee; the Institute of Marine Sciences, requested annually. Research methods Executive Committee; and Mackerel University of California at Santa Cruz include behavioral observations, Cobia Committee. The meeting week (Responsible Party: Daniel Costa, Ph.D.) marking, flipper tagging, capture and will also include a formal public has applied in due form for a permit to sampling, active and passive acoustics, comment session and meeting of the conduct research on northern elephant attachment of instrumentats for Full Council (partially Closed Session). seals (Mirounga angustirostris). tracking, translocation studies, short- Due to public health concerns DATES: Written, telefaxed, or email term captive holding for laboratory associated with COVID–19 and current comments must be received on or before studies, use of hormone challenges and travel restrictions, the meeting June 26, 2020. standard clinical tracer techniques for originally planned for Key West, FL will ADDRESSES: The application and related physiology studies. Research would be held via webinar. documents are available for review by include all age and sex classes of DATES: selecting ‘‘Records Open for Public northern elephant seals over the entire The Council meeting will be Comment’’ from the ‘‘Features’’ box on calendar year. Proposed research held from 10 a.m. on Monday, June 8, the Applications and Permits for locations include haul-out sites from 2020, until 12 p.m. on Thursday, June Protected Species (APPS) home page, California to Washington, but primarily 11, 2020. https://apps.nmfs.noaa.gov, and then An˜ o Nuevo. Incidental harassment of ADDRESSES: Meeting address: The selecting File No. 23188 from the list of northern elephant seals, California sea meeting will be held via webinar. available applications. lions (Zalophus californianus), harbor Webinar registration is required. Details These documents are also available seals (Phoca vitulina), and Steller sea are included in SUPPLEMENTARY upon written request or by appointment lions (Eumetopias jubatus) of the INFORMATION. in the Permits and Conservation Eastern Distinct Population Segment is Division, Office of Protected Resources, requested. The duration of the requested FOR FURTHER INFORMATION CONTACT: Kim NMFS, 1315 East-West Highway, Room permit is 5 years. Iverson, Public Information Officer, 13705, Silver Spring, MD 20910; phone In compliance with the National SAFMC; phone: (843) 302–8440 or toll (301) 427–8401; fax (301) 713–0376. Environmental Policy Act of 1969 (42 free: (866) SAFMC–10; fax: (843) 769– Written comments on this application U.S.C. 4321 et seq.), an initial 4520; email: [email protected]. should be submitted to the Chief, determination has been made that the SUPPLEMENTARY INFORMATION: Meeting Permits and Conservation Division, at activity proposed is categorically information, including agendas, the address listed above. Comments may excluded from the requirement to also be submitted by facsimile to (301) prepare an environmental assessment or overviews, and briefing book materials 713–0376, or by email to environmental impact statement. will be posted on the Council’s website [email protected]. Please Concurrent with the publication of at: http://safmc.net/safmc-meetings/ include the File No. in the subject line this notice in the Federal Register, council-meetings/. Webinar registration of the email comment. NMFS is forwarding copies of the links for each meeting day will also be Those individuals requesting a public application to the Marine Mammal available from the Council’s website. hearing should submit a written request Commission and its Committee of Public comment: Written comments to the Chief, Permits and Conservation Scientific Advisors. may be directed to John Carmichael, Division at the address listed above. The Dated: May 20, 2020. Executive Director, South Atlantic request should set forth the specific Julia Marie Harrison, Fishery Management Council (see reasons why a hearing on this Chief, Permits and Conservation Division, Council address) or electronically via application would be appropriate. Office of Protected Resources, National the Council’s website at http:// FOR FURTHER INFORMATION CONTACT: Sara Marine Fisheries Service. safmc.net/safmc-meetings/council- Young or Shasta McClenahan, (301) [FR Doc. 2020–11270 Filed 5–26–20; 8:45 am] meetings/. Comments received by close 427–8401. BILLING CODE 3510–22–P of business the Monday before the SUPPLEMENTARY INFORMATION: The meeting (6/1/20) will be compiled, subject permit is requested under the posted to the website as part of the authority of the Marine Mammal DEPARTMENT OF COMMERCE meeting materials, and included in the Protection Act of 1972, as amended administrative record; please use the National Oceanic and Atmospheric Council’s online form available from the (MMPA; 16 U.S.C. 1361 et seq.), the Administration regulations governing the taking and website. For written comments received importing of marine mammals (50 CFR [RTID 0648–XA179] after the Monday before the meeting part 216). (after 6/1/20), individuals submitting a The applicant requests authorization South Atlantic Fishery Management comment must use the Council’s online to continue a long-term research Council; Public Meetings form available from the website. Comments will automatically be posted program started in 1968 to study AGENCY: National Marine Fisheries northern elephant seal population to the website and available for Council Service (NMFS), National Oceanic and consideration. Comments received prior growth and status, reproductive Atmospheric Administration (NOAA), strategies, behavioral and physiological to 9 a.m. on Thursday, June 11, 2020 Commerce. will be a part of the meeting adaptations for diving and fasting, ACTION: Notice of public meetings. general physiology and metabolism, and administrative record. sensory physiology. Up to 4,210 SUMMARY: The South Atlantic Fishery The items of discussion in the northern elephant seals may be captured Management Council (Council) will individual meeting agendas are as and handled for research and up to hold meetings of the following: follows:

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Council Session (Closed)—Monday, Amendment 33 to the Snapper Grouper Mackerel Cobia Committee, June 8, 2020, 10 a.m. Until 10:45 a.m. FMP and the 2020 Red Snapper Season. Wednesday, June 10, 2020, 2:30 p.m. The Council will meet in full session 2. The Committee will review impacts Until 3:45 p.m. and receive an overview of the process of COVID–19 on the snapper grouper 1. The Committee will receive an for conducting the meeting via webinar. fishery and discuss potential update on the current status of The Council will also review applicants management responses. amendments under formal Secretarial for the Council’s Scientific and 3. The Committee will receive reports review. Statistical Committee (SSC), and the on the greater amberjack stock 2. The Committee will receive reports Socio-Economic Panel (SEP) and make assessment from NOAA Fisheries on the king mackerel stock assessment appointments as necessary. A legal Southeast Fisheries Science Center from NOAA Fisheries SEFSC and from briefing on litigation will also be held if (SEFSC) and from the SSC, and discuss the SSC, and discuss and determine the needed. and determine the Acceptable Biological ABC and management response. Information and Education Committee, Catch (ABC) and management response. 3. The Committee will review impacts of COVID–19 on the mackerel cobia Monday, June 8, 2020, 11 a.m. Until 12 4. The Committee will receive an p.m. fishery and discuss potential overview of Regulatory Amendment 34 management responses. 1. The Committee will receive a report to the Snapper Grouper Fishery Formal Public Comment, Wednesday, from the Information and Education Management Plan (FMP) addressing June 10, 2020, 4 p.m.—Public comment Advisory Panel. proposed Special Management Zone will be accepted via webinar on items 2. The Committee will receive an (SMZ) designation for artificial reefs in on the Council meeting agenda update on the Best Fishing Practices federal waters off North Carolina and scheduled to be approved for Secretarial outreach campaign, review the draft South Carolina, review public hearing Review: Regulatory Amendment 34 to Best Practices web page, receive a comments, make edits to the the Snapper Grouper FMP (SMZ briefing on upcoming outreach activities Amendment as appropriate and provide designations for artificial reefs off NC and provide direction to staff. recommendations for final Secretarial and SC). Public comment will also be Dolphin Wahoo Committee, Monday, approval. accepted on all other agenda items. The June 8, 2020, 1:30 p.m. Until 4:30 p.m. 5. The Committee will receive reports Council Chair, based on the number of 1. The Committee will receive catch on the red porgy stock assessment from individuals wishing to comment, will level recommendations from the SSC for NOAA Fisheries SEFSC and from the determine the amount of time provided dolphin and wahoo and take action as SSC, and discuss and determine the to each commenter. ABC and management response. necessary. The Committee will also Council Session: Thursday, June 11, receive an update on the Biological SEDAR Committee, Wednesday, June 2020, 9 a.m. Until 12 p.m. Opinion (BiOp) for the Highly Migratory 10, 2020, 9 a.m. Until 10 a.m. Species longline fishery. The Full Council will begin with the 2. The Committee will receive an The Committee will receive an update Call to Order, adoption of the agenda, overview of draft Amendment 10 to the on SEDAR stock assessment activities, a and approval of minutes. Dolphin Wahoo Fishery Management report from the SEDAR Steering The Council will receive updates from Plan (FMP) with actions that currently Committee, and approve Terms of staff regarding allocation discussions by address: Revisions to recreational data Reference for upcoming stock the Council’s Socio-Economic Panel and and catch level recommendations, assessments. a recently released report from the U.S. redefining Optimum Yield in the Government Accountability Office dolphin fishery, modifications to Citizen Science Committee, Wednesday, providing recommendations for accountability measures, and other June 10, 2020, 10 a.m. Until 12 p.m. documented processes for allocation management revisions to the dolphin reviews. The Council will discuss and 1. The Committee will provide provide direction to staff. and wahoo fisheries. The Committee guidance on the Citizen Science will review the draft Amendment and The Council will receive a staff report Program Evaluation including program on the impacts of COVID–19 on the provide direction to staff. goals, objectives, strategies, and 3. The Committee will receive an Council office operations, reports from indicators, and discuss the program overview of draft Amendment 12 to the state agency representatives on COVID– evaluation plan. Dolphin Wahoo FMP with measures to 19 impacts, and an update on the status add bullet mackerel and frigate 2. The Committee will also receive of the CARES Act relative to COVID–19 mackerel as Ecosystem Component programmatic and project updates. relief funds. The Council will discuss species to the Dolphin Wahoo FMP and impacts, consider any necessary Executive Committee, Wednesday, June response including emergency action, provide guidance to staff. 10, 2020, 1:30 p.m. Until 2:30 p.m. 4. The Committee will receive an and take action as appropriate. update from staff on the Dolphin Wahoo 1. The Committee will review the The Council will receive an update on Participatory Workshops and also Council Priorities and workplan and the Joint Council Workgroup on Section provide recommendations for Mid- provide revisions as needed. 102 of the Modern Fish Act and provide Atlantic Fishery Management Council guidance to the South Atlantic Fishery 2. The Committee will receive an representation on the Dolphin Wahoo Management Council representatives on update on the Council Coordination Advisory Panel. the workgroup. Committee Meeting. NOAA Fisheries Southeast Regional Snapper Grouper Committee, Tuesday, 3. The Committee will also review Office staff will provide an update on June 9, 2020, 9 a.m. Until 4:30 p.m. and provide recommendations on the status of the For-Hire Electronic 1. The Committee will receive policies relative to: Internal research Reporting Amendment. updates from NOAA Fisheries the status funding and selection process; staff The Council will review any of amendments under formal Secretarial performance evaluation process; and Exempted Fishing Permits received as review, including Regulatory sexual harassment prevention training. needed and provide recommendations.

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The Council will receive reports from DATES: Comments must be submitted on ICR will be retained in the public the following committees: Information or before June 26, 2020. comment file and will be considered as and Education; Dolphin Wahoo; ADDRESSES: Written comments and required under the Administrative Snapper Grouper; SEDAR; Citizen recommendations for the proposed Procedure Act and other applicable Science; Mackerel Cobia; and Executive; information collection should be laws, and may be accessible under the and review the SSC Selection submitted within 30 days of this Freedom of Information Act. Recommendations. The Council will notice’s publication to OIRA, at https:// FOR FURTHER INFORMATION CONTACT: take action as appropriate. www.reginfo.gov/public/do/PRAMain. Jacob Chachkin, Special Counsel, The Council will receive agency and Please find this particular information Division of Swap Dealer and liaison reports, discuss other business collection by selecting ‘‘Currently under Intermediary Oversight, Commodity and upcoming meetings, and take action 30-day Review—Open for Public Futures Trading Commission, (202) as necessary. Comments’’ or by using the website’s 418–5496, email: [email protected]; Documents regarding these issues are search function. Comments can be Steven Haidar, Special Counsel, available from the Council office (see entered electronically by clicking on the Division of Market Oversight, ADDRESSES). ‘‘comment’’ button next to the Commodity Futures Trading Although non-emergency issues not information collection on the ‘‘OIRA Commission, (202) 418–5611, email: contained in this agenda may come Information Collections Under Review’’ [email protected]; or Melissa D’Arcy, before this group for discussion, those page, or the ‘‘View ICR—Agency Special Counsel, Division of Clearing issues may not be the subject of formal Submission’’ page. A copy of the and Risk, Commodity Futures Trading action during this meeting. Action will supporting statement for the collection Commission, (202) 418–5086, email: be restricted to those issues specifically of information discussed herein may be [email protected]; and refer to OMB identified in this notice and any issues obtained by visiting https:// Control No. 3038–0049. arising after publication of this notice www.reginfo.gov/public/do/PRAMain. SUPPLEMENTARY INFORMATION: that require emergency action under In addition to the submission of Title: Procedural Requirements for section 305(c) of the Magnuson-Stevens comments to https://Reginfo.gov as Requests for Interpretative, No-Action, Fishery Conservation and Management indicated above, a copy of all comments and Exemptive Letters (OMB Control Act, provided the public has been submitted to OIRA may also be No. 3038–0049). This is a request for an notified of the Council’s intent to take submitted to the Commodity Futures extension of a currently approved final action to address the emergency. Trading Commission (the information collection. ‘‘Commission’’ or ‘‘CFTC’’) by clicking Special Accommodations Abstract: This collection covers the on the ‘‘Submit Comment’’ box next to information requirements for voluntary These meetings are physically the descriptive entry for OMB Control requests for, and the issuance of, accessible to people with disabilities. No. 3038–0049, at https:// interpretative, no-action, and exemptive Requests for auxiliary aids should be comments.cftc.gov/FederalRegister/ letters submitted to Commission staff directed to the Council office (see PublicInfo.aspx. pursuant to the provisions of section ADDRESSES) 5 days prior to the meeting. Or by either of the following methods: • 140.99 of the Commission’s Note: The times and sequence specified in Mail: Christopher Kirkpatrick, regulations,2 and related requests for this agenda are subject to change. Secretary of the Commission, confidential treatment pursuant to Commodity Futures Trading section 140.98(b) 3 of the Commission’s Authority: 16 U.S.C. 1801 et seq. Commission, Three Lafayette Centre, regulations. Dated: May 21, 2020. 1155 21st Street NW, Washington, DC The collection requirements described Tracey L. Thompson, 20581. herein are voluntary. They apply to • Hand Delivery/Courier: Same as Acting Deputy Director, Office of Sustainable parties that choose to request a benefit Fisheries, National Marine Fisheries Service. Mail above. from Commission staff in the form of the All comments must be submitted in regulatory action described in section [FR Doc. 2020–11394 Filed 5–26–20; 8:45 am] English, or if not, accompanied by an 140.99. Such benefits may include, for BILLING CODE 3510–22–P English translation. Comments example, relief from some or all of the submitted to the Commission should burdens associated with other include only information that you wish collections of information, relief from COMMODITY FUTURES TRADING to make available publicly. If you wish regulatory obligations that do not COMMISSION the Commission to consider information that you believe is exempt from constitute collections of information, Agency Information Collection disclosure under the Freedom of interpretations, or extensions of time for Activities Under OMB Review Information Act, a petition for compliance with certain Commission regulations. It is likely that persons who AGENCY: Commodity Futures Trading confidential treatment of the exempt information may be submitted according would opt to request action under Commission. section 140.99 will have determined ACTION: Notice. to the procedures established in § 145.9 of the Commission’s regulations.1 The that the sought relief substantially SUMMARY: In compliance with the Commission reserves the right, but shall outweighs the information collection Paperwork Reduction Act of 1995 have no obligation, to review, pre- burdens. This information collection is (PRA), this notice announces that the screen, filter, redact, refuse or remove necessary, and would be used, to assist Information Collection Request (‘‘ICR’’) any or all of your submission from Commission staff in understanding the abstracted below has been forwarded to https://www.cftc.gov that it may deem to type of relief that is being requested and the Office of Information and Regulatory be inappropriate for publication, such as the basis for the request. It is also Affairs (‘‘OIRA’’), of the Office of obscene language. All submissions that Management and Budget (‘‘OMB’’), for have been redacted or removed that 2 17 CFR 140.99. An archive containing CFTC review and comment. The ICR describes contain comments on the merits of the staff letters may be found at http://www.cftc.gov/ the nature of the information collection LawRegulation/CFTCStaffLetters/index.htm. and its expected costs and burden. 1 17 CFR 145.9. 3 17 CFR 140.98(b).

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necessary, and would be used, to Estimated Average Burden Hours per DEPARTMENT OF DEFENSE provide staff with a sufficient basis for Respondent: 40. Office of the Secretary determining whether: (1) Granting the Estimated Total Annual Burden relief would be necessary or appropriate Hours: 2,720. under the facts and circumstances Uniform Formulary Beneficiary presented by the requestor; (2) the relief Frequency of Collection: Occasional. Advisory Panel; Notice of Federal provided should be conditional and/or There are no capital costs or operating Advisory Committee Virtual Meeting time-limited; and (3) granting the relief and maintenance costs associated with AGENCY: Under Secretary of Defense for would be consistent with staff responses this collection. Personnel and Readiness, Department of to requests that have been presented (Authority: 44 U.S.C. 3501 et seq.) Defense (DoD). under similar facts and circumstances. Dated: May, 20, 2020. ACTION: Notice of Federal Advisory In some cases, the requested relief might Committee meeting. be granted upon the requirement that Robert Sidman, those who seek the benefits of that relief Deputy Secretary of the Commission. SUMMARY: The DoD is publishing this fulfill certain conditions that are [FR Doc. 2020–11296 Filed 5–26–20; 8:45 am] notice to announce that the following necessary to ensure that the relief BILLING CODE 6351–01–P Federal Advisory Committee meeting of granted by Commission staff is the Uniform Formulary Beneficiary appropriate. Once again, it is likely that Advisory Panel will take place. those who would comply with these COMMODITY FUTURES TRADING DATES: Open to the public Wednesday, conditions will have determined that COMMISSION June 24, 2020, from 1:00 p.m. to 2:00 the sought relief outweighs the p.m. (Eastern Daylight Time). Sunshine Act Meetings compliance burden. This information ADDRESSES: The address of the open collection also is necessary to provide a meeting will be online. The phone mechanism whereby persons requesting TIME AND DATE: 10:00 a.m. EDT, number for the remote access is: interpretative, no-action, and exemptive Thursday, May 28, 2020. CONUS: 888–469–2037; OCONUS: 1– letters may seek temporary confidential PLACE: Conference call. 517–308–9287; PARTICIPANT CODE: treatment of their request and the 8227323. These numbers and the dial-in Commission staff response thereto and STATUS: Open. instructions will also be posted on the the grounds upon which such MATTERS TO BE CONSIDERED: Uniform Formulary Beneficiary confidential treatment is sought. The Commodity Futures Trading Advisory Panel website at: https:// An agency may not conduct or Commission (‘‘Commission’’ or www.health.mil/About-MHS/OASDHA/ sponsor, and a person is not required to ‘‘CFTC’’) will hold this meeting to Defense-Health-Agency/Operations/ respond to, a collection of information consider the following matters: Pharmacy-Division/Beneficiary- unless it displays a currently valid OMB Advisory-Panel. • Proposed Rule: Amendments to control number. On March 18, 2020, the FOR FURTHER INFORMATION CONTACT: Regulation 3.10(c)(3)—Providing an Commission published in the Federal Colonel Paul J. Hoerner, USAF, 703– Exemption from Registration for Foreign Register notice of the proposed 681–2890 (Voice), None (Facsimile), Persons Acting as Commodity Pool extension of this information collection [email protected] Operators on Behalf of Offshore and provided 60 days for public (Email). Mailing address is 7700 Commodity Pools; and comment on the proposed extension, 85 Arlington Boulevard, Suite 5101, Falls FR 15436 (‘‘60-Day Notice’’). The • Interim Final Rule: Amendments to Church, VA 22042–5101. Website: Commission did not receive any Regulation 23.161—Extending the http://www.health.mil/About-MHS/ relevant comments on the 60-Day Compliance Schedule for Initial Margin Other-MHS-Organizations/Beneficiary- Notice. Accordingly, the Commission Requirements for Uncleared Swaps in Advisory-Panel. The most up-to-date believes that the burden estimate Response to the COVID–19 Pandemic. changes to the meeting agenda can be described in the 60-Day Notice is The agenda for this meeting will be found on the website. appropriate. available to the public and posted on SUPPLEMENTARY INFORMATION: This Burden Statement: The Commission the Commission’s website at https:// meeting is being held under the is revising its estimate of the burden for www.cftc.gov. Instructions for public provisions of the Federal Advisory this collection for persons registered access to the live audio feed of the Committee Act (FACA) of 1972 (5 with the Commission (such as meeting will also be posted on the U.S.C., Appendix, as amended), the commodity pool operators, commodity Commission’s website. In the event that Government in the Sunshine Act of trading advisors, derivatives clearing the time, date, or place of this meeting 1976 (5 U.S.C. 552b, as amended), and organizations, designated contract changes, an announcement of the 41 CFR 102–3.140 and 102–3.150. markets, futures commission merchants, change, along with the new time, date, The Panel will review and comment introducing brokers, swap dealers, and or place of the meeting, will be posted on recommendations made to the swap execution facilities), persons on the Commission’s website. Director, Defense Health Agency, by the seeking an exemption from registration, Pharmacy and Therapeutics Committee, CONTACT PERSON FOR MORE INFORMATION: persons whose registration with the regarding the Uniform Formulary. Commission is pending, trade Christopher Kirkpatrick, Secretary of the Purpose of the Meeting: The DoD is associations and their members, eligible Commission, 202–418–5964. publishing this notice to announce that contract participants, and other persons Authority: 5 U.S.C. 552b. the following Federal Advisory seeking relief from discrete regulatory Dated: May 21, 2020. Committee meeting of the Uniform requirements. Formulary Beneficiary Advisory Panel Christopher Kirkpatrick, The respondent burden for this will take place. collection is estimated to be as follows: Secretary of the Commission. Agenda: Estimated Number of Respondents: [FR Doc. 2020–11409 Filed 5–22–20; 11:15 am] 1. Sign-In 68. BILLING CODE 6351–01–P 2. Welcome and Opening Remarks

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3. Newly Approved Drugs Review DATES: The RFPB will hold an open to (EPLO) for USNORTHCOM will discuss 4. Pertinent Utilization Management the public meeting on Wednesday, June the role of EPLOs in COVID 19 response Issues 3, 2020 from 8:55 a.m. to 12:10 p.m. operations and speak to actions at the tactical level, focusing on lessons 5. Panel Discussions and Vote ADDRESSES: The RFPB meeting will be online using Microsoft Teams CVR and learned and recommendations for future Meeting Accessibility: Pursuant to 5 Teleconference line. To participate in disaster response efforts; the New York U.S.C. 552b, and 41 CFR 102–3.140 the meeting, see the Meeting State Commissioner of the Division of through 102–3.165, and the subject to Accessibility section for instructions. Homeland Security and Emergency availability of phone lines, this meeting FOR FURTHER INFORMATION CONTACT: Services will discuss New York’s is open to the public. Access is limited Alexander Sabol, (703) 681–0577 perspective on the effectiveness of the and will be provided only to the first (Voice), 703–681–0002 (Facsimile), partnership of the State, FEMA, and 220 people dialing in. There will be 220 [email protected] (Email). Department of Defense in COVID 19 lines total: 200 domestic and 20 Mailing address is Reserve Forces Policy response efforts, and provide international, including leader lines. Board, 5113 Leesburg Pike, Suite 601, recommendations to enhance future Written Statements: Pursuant to 41 Falls Church, VA 22041. Website: collaboration between entities; the CFR 102–3.10, and section 10(a)(3) of http://rfpb.defense.gov/. The most up- Deputy Assistant Secretary Defense for FACA, interested persons or to-date changes to the meeting agenda Reserve Integration will discuss the organizations may submit written can be found on the website and the impact of COVID 19 on the Reserve statements to the Uniform Formulary Federal Register. Components’ readiness, discussing Beneficiary Advisory Panel about its policies that hindered readiness, SUPPLEMENTARY INFORMATION: Due to mission and/or the agenda to be comparing best practices, and providing circumstances beyond the control of the recommended future policy changes to addressed in this public meeting. Department of Defense and the Written statements should be submitted preserve and enhance readiness during Designated Federal Officer, the Reserve periods of distributed operations; and to the Uniform Formulary Beneficiary Forces Policy Board was unable to Advisory Panel’s Designated Federal the Subcommittee on Supporting and provide public notification required by Sustaining Reserve Component Officer (DFO). The DFO’s contact 41 CFR 102–3.150(a) concerning its information can be found in the FOR Personnel will discuss the Board’s meeting of June 3, 2020. Accordingly, review of and make suggestions for the FURTHER INFORMATION CONTACT section of the Advisory Committee Management this notice. Written comments or Department’s New Administration Officer for the Department of Defense, Transition Book that will provide statements must be received by the pursuant to 41 CFR 102–3.150(b), Uniform Formulary Beneficiary recommendations on strategies to waives the 15-calendar day notification enhance the future capabilities and Advisory Panel’s DFO at least five (5) requirement. business days prior to the meeting so effectiveness of the Reserve Components This meeting is being held under the and Department as a whole, to include they may be made available to the provisions of the Federal Advisory Uniform Formulary Beneficiary potential rebalancing of Active/Reserve Committee Act (FACA) (5 U.S.C., future force structure. Advisory Panel for its consideration Appendix), the Government in the prior to the meeting. The DFO will Meeting Accessibility: Pursuant to 5 Sunshine Act (5 U.S.C. 552b), and 41 U.S.C. 552b, as amended and 41 CFR review all submitted written statements CFR 102–3.140 and 102–3.150. and provide copies to all Uniform 102–3.140 through 102–3.165, and Purpose of the Meeting: The purpose subject to the availability of space, the Formulary Beneficiary Advisory Panel of the meeting is to obtain, review, and members. meeting is open online to the public evaluate information related to from 8:55 a.m. to 12:10 p.m. Persons Dated: May 21, 2020. strategies, policies, and practices desiring to participate in the meeting Aaron T. Siegel, designed to improve and enhance the online or by phone are required to Alternate OSD Federal Register Liaison capabilities, efficiency, and submit their name, organization, email Officer, Department of Defense. effectiveness of the Reserve and telephone contact information to [FR Doc. 2020–11336 Filed 5–26–20; 8:45 am] Components. COL Christopher Warner at BILLING CODE 5001–06–P Agenda: The RFPB will hold an [email protected] not online open to the public meeting on later than Friday, May 29, 2020. Specific Wednesday, June 3, 2020 from 8:55 a.m. instructions, both for online or DEPARTMENT OF DEFENSE to 12:10 p.m. The meeting will consist teleconference participation in the of remarks to the RFPB from the meeting, will be provided by reply Office of the Secretary following invited speakers: Under email. The meeting agenda will be Secretary of Defense for Personnel and available prior to the meeting on the Reserve Forces Policy Board; Notice Readiness will discuss the goals of the Board’s website at: http:// of Federal Advisory Committee Under Secretary of Defense for rfpb.defense.gov/. Meeting Personnel and Readiness, the Written Statements: Pursuant to Department’s response to the section 10(a)(3) of the FACA and 41 CFR AGENCY: Under Secretary of Defense for coronavirus disease 2019 (COVID–19), 102–3.105(j) and 102–3.140, interested Personnel and Readiness, Department of and potential changes to future policy persons may submit written statements Defense (DoD). necessitated by the response; the Deputy to the RFPB about its approved agenda ACTION: Notice of Federal Advisory Commander, United States Northern or at any time on the RFPB’s mission. Committee meeting. Command (USNORTHCOM) will Written statements should be submitted discuss the Reserve Components’ role in to the RFPB’s Designated Federal Officer SUMMARY: The DoD is publishing this USNORTHCOM’s response to COVID 19 (DFO) at the address, email, or facsimile notice to announce that the following and recommended force structure/ number listed in the FOR FURTHER Federal Advisory Committee meeting of policy changes for future domestic INFORMATION CONTACT section. If the Reserve Forces Policy Board (RFPB) response operations; the Navy statements pertain to a specific topic will take place. Emergency Preparedness Liaison Officer being discussed at the planned meeting,

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then these statements must be submitted administration (including the Electronic Access to this Document: no later than five (5) business days prior development of regulations, and The official version of this document is to the meeting in question. Written administrative policies and practices) of the document published in the Federal statements received after this date may any program over which the Secretary Register. Free internet access to the not be provided to or considered by the has jurisdiction and includes Indian official edition of the Federal Register RFPB until its next meeting. The DFO children or adults as participants or that and the Code of Federal Regulations is will review all timely submitted written may benefit Indian children or adults, available via the Federal Digital System statements and provide copies to all the including any program established at: www.gpo.gov/fdsys. At this site you RFPB members before the meeting that under Title VI, Part A of the Elementary can view this document, as well as all is the subject of this notice. Please note and Secondary Education Act. In other documents of this Department that since the RFPB operates in addition, NACIE advises the White published in the Federal Register, in accordance with the provisions of the House Initiative on American Indian text or Adobe Portable Document FACA, all submitted comments and and Alaska Native Education, in Format (PDF). To use PDF, you must public presentations will be treated as accordance with Section 5(a) of have Adobe Acrobat Reader, which is public documents and will be made Executive Order 13592. NACIE submits available free at the site. available for public inspection, to the Congress each year a report on its You may also access documents of the including, but not limited to, being activities that includes Department published in the Federal posted on the RFPB’s website. recommendations that are considered Register by using the article search Dated: May 21, 2020. appropriate for the improvement of feature at: www.federalregister.gov. Specifically, through the advanced Aaron T. Siegel, Federal education programs that include Indian children or adults as participants search feature at this site, you can limit Alternate OSD Federal Register Liaison your search to documents published by Officer, Department of Defense. or that may benefit Indian children or adults, and recommendations the Department. [FR Doc. 2020–11327 Filed 5–26–20; 8:45 am] concerning the funding of any such BILLING CODE 5001–06–P Authority: § 6141 of the Elementary and program. Secondary Education Act of 1965 (ESEA) as Meeting Agenda: The purpose of the amended by Every Student Succeeds Act meeting is to convene NACIE members, (ESSA) (20 U.S.C. 7471). DEPARTMENT OF EDUCATION per its authorizing legislation and the Frank T. Brogan, provisions of FACA, to deliberate and National Advisory Council on Indian Assistant Secretary, Office of Elementary and Education (NACIE); Meeting vote on the recommendation from Secondary Education. NACIE’s OIE Director Hiring [FR Doc. 2020–11266 Filed 5–26–20; 8:45 am] AGENCY: U.S. Department of Education. subcommittee. In turn, NACIE shall ACTION: Notice meeting. prepare its recommendation to the BILLING CODE 4000–01–P Secretary for filling the OIE Director SUMMARY: Notice of this meeting is position. The discussions during this DEPARTMENT OF EDUCATION required by Section 10(a)(2) of the meeting will pertain solely to internal Federal Advisory Committee Act personnel rules and practices of an [Docket No.: ED–2020–SCC–0072] (FACA) and is intended to notify agency and information of a personal members of the public of an upcoming nature where disclosure would Agency Information Collection NACIE closed teleconference meeting. constitute a clearly unwarranted Activities; Comment Request; CARES This notice is being published less than invasion of personal privacy. As such, Act, Recipient’s Funding Certification 15 days prior to the date of the meeting the discussions are protected by and Agreement (Student Aid) due to delays in making arrangements exemptions 2 and 6 of § 552b(c) of Title AGENCY: Department of Education (ED). for a virtual closed meeting due to the 5 of the United States Code. COVID–19 impact on the capability to ACTION: Notice. Public Comment: Members of the have face-to-face Council meetings. public interested in submitting written SUMMARY: In accordance with the DATES: The NACIE closed comments may do so via email to Paperwork Reduction Act of 1995, ED is teleconference meeting will be held on [email protected]. proposing an extension of an existing May 27, 2020, 3:00 p.m. (EDT). Please note, written comments should information collection. FOR FURTHER INFORMATION CONTACT: pertain to the work of NACIE and/or the DATES: Interested persons are invited to Angela Hernandez Marshall, Designated Office of Indian Education. submit comments on or before July 27, Federal Official, Office of Elementary Access to Records of the Meeting: The 2020. and Secondary Education (OESE)/Office Department will post the official closed ADDRESSES: To access and review all the of Indian Education (OIE), U.S. meeting report of this meeting on the documents related to the information Department of Education, 400 Maryland OESE website at: https://oese.ed.gov/ collection listed in this notice, please Avenue SW, Room 3W113, Washington, offices/office-of-indian-education/ use http://www.regulations.gov by DC 20202. Telephone: 202–205–1909, national-advisory-council-on-indian- searching the Docket ID number ED– Email: Angela.Hernandez-Marshall@ education-oie/ 21 days after the 2020–SCC–0072. Comments submitted ed.gov. meeting. Pursuant to the FACA, the in response to this notice should be SUPPLEMENTARY INFORMATION: Statutory public may also inspect NACIE records submitted electronically through the Authority and Function: NACIE is at the Office of Indian Education, Federal eRulemaking Portal at http:// authorized by Section 6141 of the United States Department of Education, www.regulations.gov by selecting the Elementary and Secondary Education 400 Maryland Avenue SW, Washington, Docket ID number or via postal mail, Act of 1965. NACIE is established DC 20202, Monday–Friday, 8:30 a.m. to commercial delivery, or hand delivery. within the U.S. Department of 5:00 p.m. Eastern Time. Please email If the regulations.gov site is not Education to advise the Secretary of [email protected] or by calling Wanda available to the public for any reason, Education (Secretary) and the Secretary Lee at (202) 453–7262 to schedule an ED will temporarily accept comments at of Interior on the funding and appointment. [email protected]. Please include the

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docket ID number and the title of the Abstract: Section 18004(a)(1) of the 2020–SCC–0073. Comments submitted information collection request when CARES Act, Public Law 116–136 (March in response to this notice should be requesting documents or submitting 27, 2020), authorizes the Secretary of submitted electronically through the comments. Please note that comments Education to allocate formula grant Federal eRulemaking Portal at http:// submitted by fax or email and those funds to participating institutions of www.regulations.gov by selecting the submitted after the comment period will higher educations (IHEs). Section Docket ID number or via postal mail, not be accepted. Written requests for 18004(c) of the CARES Act requires the commercial delivery, or hand delivery. information or comments submitted by IHEs to use no less than fifty percent of If the regulations.gov site is not postal mail or delivery should be the funds received to provide available to the public for any reason, addressed to the Director of the Strategic emergency financial aid grants to ED will temporarily accept comments at Collections and Clearance Governance students for expenses related to the [email protected]. Please include the and Strategy Division, U.S. Department disruption of campus operations due to docket ID number and the title of the of Education, 400 Maryland Ave. SW, coronavirus (including eligible expenses information collection request when LBJ, Room 6W–208D, Washington, DC under a student’s cost of attendance requesting documents or submitting 20202–4537. such as food, housing, course materials, comments. Please note that comments FOR FURTHER INFORMATION CONTACT: For technology, health care, and child care). submitted by fax or email and those specific questions related to collection This information collection request submitted after the comment period will activities, please contact Gaby Watts, includes the certification and agreement not be accepted. Written requests for 202–453–7195. that must be submitted by an IHE in information or comments submitted by SUPPLEMENTARY INFORMATION: The order to request student aid funds postal mail or delivery should be Department of Education (ED), in allocated under the CARES Act and addressed to the Director of the Strategic accordance with the Paperwork outlines associated reporting Collections and Clearance Governance Reduction Act of 1995 (PRA) (44 U.S.C. requirements. and Strategy Division, U.S. Department This information collection request 3506(c)(2)(A)), provides the general of Education, 400 Maryland Ave. SW, was previously approved as an public and Federal agencies with an LBJ, Room 6W–208D, Washington, DC emergency clearance in order to comply opportunity to comment on proposed, 20202–4537. revised, and continuing collections of with the requirements of the CARES Act information. This helps the Department and expedite the release of funds to FOR FURTHER INFORMATION CONTACT: For assess the impact of its information IHEs and students with pressing specific questions related to collection collection requirements and minimize financial needs due to the pandemic. activities, please contact Gaby Watts, the public’s reporting burden. It also The Department of Education is now 202–453–7195. requesting an extension of that helps the public understand the SUPPLEMENTARY INFORMATION: The Department’s information collection emergency clearance under normal clearance procedures. Department of Education (ED), in requirements and provide the requested accordance with the Paperwork data in the desired format. ED is Dated: May 21, 2020. Reduction Act of 1995 (PRA) (44 U.S.C. soliciting comments on the proposed Kate Mullan, 3506(c)(2)(A)), provides the general information collection request (ICR) that PRA Coordinator, Strategic Collections and public and Federal agencies with an is described below. The Department of Clearance, Governance and Strategy Division, opportunity to comment on proposed, Office of Chief Data Officer. Education is especially interested in revised, and continuing collections of public comment addressing the [FR Doc. 2020–11355 Filed 5–26–20; 8:45 am] information. This helps the Department following issues: (1) Is this collection BILLING CODE 4000–01–P assess the impact of its information necessary to the proper functions of the collection requirements and minimize Department; (2) will this information be the public’s reporting burden. It also processed and used in a timely manner; DEPARTMENT OF EDUCATION helps the public understand the (3) is the estimate of burden accurate; [Docket No.: ED–2020–SCC–0073] Department’s information collection (4) how might the Department enhance requirements and provide the requested the quality, utility, and clarity of the Agency Information Collection information to be collected; and (5) how data in the desired format. ED is Activities; Comment Request; CARES soliciting comments on the proposed might the Department minimize the Act, Recipient’s Funding Certification information collection request (ICR) that burden of this collection on the and Agreement (Institutional Aid) respondents, including through the use is described below. The Department of of information technology. Please note AGENCY: Office of Postsecondary Education is especially interested in that written comments received in Education (OPE), Department of public comment addressing the response to this notice will be Education (ED). following issues: (1) Is this collection considered public records. ACTION: Notice. necessary to the proper functions of the Title of Collection: CARES Act, Department; (2) will this information be Recipient’s Funding Certification and SUMMARY: In accordance with the processed and used in a timely manner; Agreement (Student Aid). Paperwork Reduction Act of 1995, ED is (3) is the estimate of burden accurate; OMB Control Number: 1801–0005. proposing an extension of an existing (4) how might the Department enhance Type of Review: An extension of an information collection. the quality, utility, and clarity of the existing information collection. DATES: Interested persons are invited to information to be collected; and (5) how Respondents/Affected Public: Private submit comments on or before July 27, might the Department minimize the Sector; State, Local, and Tribal 2020. burden of this collection on the Governments. ADDRESSES: To access and review all the respondents, including through the use Total Estimated Number of Annual documents related to the information of information technology. Please note Responses: 5,705. collection listed in this notice, please that written comments received in Total Estimated Number of Annual use http://www.regulations.gov by response to this notice will be Burden Hours: 5,705. searching the Docket ID number ED– considered public records.

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Title of Collection: CARES Act, proposing an extension of an existing Total Estimated Number of Annual Recipient’s Funding Certification and information collection. Burden Hours: 2,871. Agreement (Institutional Aid). DATES: Interested persons are invited to Abstract: The Teacher Loan OMB Control Number: 1840–0842. submit comments on or before June 26, Forgiveness (TLF) Application serves as Type of Review: An extension of an 2020. the means by which an eligible Direct existing information collection. Loan or FFEL program borrower who ADDRESSES: Written comments and Respondents/Affected Public: Private has completed five consecutive years of recommendations for proposed Sector; State, Local, and Tribal qualifying teaching service applies for information collection requests should Governments. forgiveness of up to $5,000 or up to be sent within 30 days of publication of Total Estimated Number of Annual $17,500 of his or her eligible loans. this notice to www.reginfo.gov/public/ Responses: 5,705. Eligible special education teachers and do/PRAMain. Find this particular Total Estimated Number of Annual secondary school math or science information collection request by Burden Hours: 2,853. teachers may receive a maximum of selecting ‘‘Department of Education’’ Abstract: Section 18004(a)(1) of the $17,500 in loan forgiveness. Other under ‘‘Currently Under Review,’’ then CARES Act, Public Law 116–136 (March teachers may receive a maximum of check ‘‘Only Show ICR for Public 27, 2020), authorizes the Secretary of $5,000 in loan forgiveness. Borrowers Comment’’ checkbox. Education to allocate formula grant who are working toward loan funds to participating institutions of FOR FURTHER INFORMATION CONTACT: For forgiveness may use the TLF higher educations (IHEs). Section specific questions related to collection Forbearance Request to request a 18004(c) of the CARES Act allows the activities, please contact Jon Utz, 202– forbearance during some or all of their IHEs to use up to one-half of the total 377–4040. required five consecutive years of funds received to cover any costs SUPPLEMENTARY INFORMATION: The teaching service. A prospective TLF associated with the significant changes Department of Education (ED), in applicant may receive a forbearance to the delivery of instruction due to the accordance with the Paperwork during some or all of the five-year coronavirus (with specific exceptions). Reduction Act of 1995 (PRA) (44 U.S.C. teaching period only if the projected This information collection request 3506(c)(2)(A)), provides the general balance on the borrower’s eligible loans includes the certification and agreement public and Federal agencies with an at the end of the five-year period (if the that must be submitted by an IHE in opportunity to comment on proposed, borrower made monthly loan payments order to request institutional aid funds revised, and continuing collections of during that period) would be less than allocated under the CARES Act. information. This helps the Department the maximum forgiveness amount for This information collection request assess the impact of its information which the borrower qualifies. was previously approved as an collection requirements and minimize Dated: May 21, 2020. emergency clearance in order to comply the public’s reporting burden. It also Kate Mullan, with the requirements of the CARES Act helps the public understand the PRA Coordinator, Strategic Collections and and expedite the release of funds to Department’s information collection Clearance, Governance and Strategy Division, IHEs and students with pressing requirements and provide the requested Office of Chief Data Officer. financial needs due to the pandemic. data in the desired format. ED is [FR Doc. 2020–11309 Filed 5–26–20; 8:45 am] The Department of Education is now soliciting comments on the proposed BILLING CODE 4000–01–P requesting an extension of that information collection request (ICR) that emergency clearance under normal is described below. The Department of clearance procedures. Education is especially interested in DEPARTMENT OF EDUCATION public comment addressing the Dated: May 21, 2020. [Docket No. ED–2020–SCC–0047] Kate Mullan, following issues: (1) Is this collection necessary to the proper functions of the PRA Coordinator, Strategic Collections and Agency Information Collection Department; (2) will this information be Clearance, Governance and Strategy Division, Activities; Submission to the Office of processed and used in a timely manner; Office of Chief Data Officer. Management and Budget for Review (3) is the estimate of burden accurate; [FR Doc. 2020–11354 Filed 5–26–20; 8:45 am] and Approval; Comment Request; (4) how might the Department enhance BILLING CODE 4000–01–P Annual Report of Children in State the quality, utility, and clarity of the Agency and Locally Operated information to be collected; and (5) how Institutions for Neglected and might the Department minimize the DEPARTMENT OF EDUCATION Delinquent Children burden of this collection on the [Docket No.: ED–2020–SCC–0049] respondents, including through the use AGENCY: Office of Elementary and of information technology. Please note Secondary Education (OESE), Agency Information Collection that written comments received in Department of Education (ED). Activities; Submission to the Office of response to this notice will be ACTION: Notice. Management and Budget for Review considered public records. and Approval; Comment Request; Title of Collection: Federal Direct SUMMARY: In accordance with the Federal Direct Loan Program and Loan Program and Federal Family Paperwork Reduction Act of 1995, ED is Federal Family Education Loan Education Loan Program Teacher Loan proposing an extension of an existing Program Teacher Loan Forgiveness Forgiveness Forms. information collection. Forms OMB Control Number: 1845–0059. DATES: Interested persons are invited to AGENCY: Federal Student Aid (FSA), Type of Review: An extension of an submit comments on or before June 26, Department of Education (ED). existing information collection. 2020. ACTION: Notice. Respondents/Affected Public: ADDRESSES: Written comments and Individuals or Households. recommendations for proposed SUMMARY: In accordance with the Total Estimated Number of Annual information collection requests should Paperwork Reduction Act of 1995, ED is Responses: 8,700. be sent within 30 days of publication of

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this notice to www.reginfo.gov/public/ October caseload of N or D children in FOR FURTHER INFORMATION CONTACT: For do/PRAMain. Find this particular local institutions. The U.S. Department specific questions related to collection information collection request by of Education is required to use these activities, please contact Andrew Brake, selecting ‘‘Department of Education’’ data to calculate allocations under parts 202–453–6136. under ‘‘Currently Under Review,’’ then A and D of Title I of the Elementary and SUPPLEMENTARY INFORMATION: The check ‘‘Only Show ICR for Public Secondary Education Act, as amended Department of Education (ED), in Comment’’ checkbox. by the Every Student Succeeds Act. accordance with the Paperwork FOR FURTHER INFORMATION CONTACT: For Dated: May 21, 2020. Reduction Act of 1995 (PRA) (44 U.S.C. specific questions related to collection Kate Mullan, 3506(c)(2)(A)), provides the general activities, please contact Todd PRA Coordinator, Strategic Collections and public and Federal agencies with an Stephenson, 202–205–1645. Clearance, Governance and Strategy Division, opportunity to comment on proposed, SUPPLEMENTARY INFORMATION: The Office of Chief Data Officer. revised, and continuing collections of Department of Education (ED), in [FR Doc. 2020–11337 Filed 5–26–20; 8:45 am] information. This helps the Department accordance with the Paperwork BILLING CODE 4000–01–P assess the impact of its information Reduction Act of 1995 (PRA) (44 U.S.C. collection requirements and minimize 3506(c)(2)(A)), provides the general the public’s reporting burden. It also public and Federal agencies with an DEPARTMENT OF EDUCATION helps the public understand the opportunity to comment on proposed, Department’s information collection revised, and continuing collections of [Docket No.: ED–2020–SCC–0074] requirements and provide the requested information. This helps the Department data in the desired format. ED is assess the impact of its information Agency Information Collection soliciting comments on the proposed collection requirements and minimize Activities; Comment Request; information collection request (ICR) that the public’s reporting burden. It also Governor’s Emergency Education is described below. The Department of helps the public understand the Relief Fund Application Education is especially interested in Department’s information collection public comment addressing the AGENCY: Office of Elementary and requirements and provide the requested following issues: (1) Is this collection Secondary Education (OESE), data in the desired format. ED is necessary to the proper functions of the Department of Education (ED). soliciting comments on the proposed Department; (2) will this information be information collection request (ICR) that ACTION: Notice. processed and used in a timely manner; is described below. The Department of (3) is the estimate of burden accurate; SUMMARY: In accordance with the Education is especially interested in (4) how might the Department enhance Paperwork Reduction Act of 1995, ED is public comment addressing the the quality, utility, and clarity of the proposing an extension of an existing following issues: (1) Is this collection information to be collected; and (5) how information collection. necessary to the proper functions of the might the Department minimize the Department; (2) will this information be DATES: Interested persons are invited to burden of this collection on the processed and used in a timely manner; submit comments on or before July 27, respondents, including through the use (3) is the estimate of burden accurate; 2020. of information technology. Please note (4) how might the Department enhance ADDRESSES: To access and review all the that written comments received in the quality, utility, and clarity of the documents related to the information response to this notice will be information to be collected; and (5) how collection listed in this notice, please considered public records. might the Department minimize the use http://www.regulations.gov by Title of Collection: Governor’s burden of this collection on the searching the Docket ID number ED– Emergency Education Relief Fund respondents, including through the use 2020–SCC–0074. Comments submitted Application. of information technology. Please note in response to this notice should be OMB Control Number: 1810–0741. that written comments received in submitted electronically through the Type of Review: An extension of an response to this notice will be Federal eRulemaking Portal at http:// existing information collection. considered public records. www.regulations.gov by selecting the Respondents/Affected Public: State, Title of Collection: Annual Report of Docket ID number or via postal mail, Local, and Tribal Governments. Children in State Agency and Locally commercial delivery, or hand delivery. Total Estimated Number of Annual Operated Institutions for Neglected and If the regulations.gov site is not Responses: 52. Delinquent Children. available to the public for any reason, Total Estimated Number of Annual OMB Control Number: 1810–0060. ED will temporarily accept comments at Burden Hours: 26. Type of Review: An extension of an [email protected]. Please include the Abstract: The Governor’s Emergency existing information collection. docket ID number and the title of the Education Relief Fund awards grants to Respondents/Affected Public: State, information collection request when Governors (states) for the purpose of Local, and Tribal Governments. requesting documents or submitting providing local educational agencies Total Estimated Number of Annual comments. Please note that comments (LEAs), institutions of higher education Responses: 2,812. submitted by fax or email and those (IHEs), and other education related Total Estimated Number of Annual submitted after the comment period will entities with emergency assistance as a Burden Hours: 4,061. not be accepted. Written requests for result of the coronavirus pandemic. The Abstract: An annual survey is information or comments submitted by Department will award these grants—to conducted to collect data on (1) the postal mail or delivery should be States (governor’s offices) based on a number of children enrolled in addressed to the Director of the Strategic formula stipulated in the legislation. (1) educational programs of State-operated Collections and Clearance Governance 60% on the basis of the State’s relative institutions for neglected or delinquent and Strategy Division, U.S. Department population of individuals aged 5 (N or D) children, community day of Education, 400 Maryland Ave. SW, through 24. (2) 40% on the basis of the programs for N or D children, and adult LBJ, Room 6W–208D, Washington, DC State’s relative number of children correctional institutions and (2) the 20202–4537. counted under section 1124(c) of the

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Elementary and Secondary Education available online at: https://www.eia.gov/ DEPARTMENT OF ENERGY Act of 1965 (ESEA). This is a request for survey/#coal. regular approval of an information SUPPLEMENTARY INFORMATION: This Federal Energy Regulatory collection. information collection request contains Commission Dated: May 21, 2020. (1) OMB No.: 1905–0167; Combined Notice of Filings #1 Kate Mullan, (2) Information Collection Request PRA Coordinator, Strategic Collections and Title: Coal Markets Reporting System; Take notice that the Commission Clearance, Governance and Strategy Division, (3) Type of Request: Three-year received the following exempt Office of Chief Data Officer. extension without changes; wholesale generator filings: [FR Doc. 2020–11352 Filed 5–26–20; 8:45 am] (4) Purpose: The CMRS program Docket Numbers: EG20–167–000. BILLING CODE 4000–01–P collects, evaluates, assembles, analyzes, Applicants: Wheatridge Wind Energy, and disseminates information on coal LLC. resource reserves, production, demand, Description: Notice of Self- technology, and related economic and Certification of Exempt Wholesale DEPARTMENT OF ENERGY statistical information. Aggregates of Generation Status of Wheatridge Wind this collection are used to support Energy, LLC. U.S. Energy Information public policy analyses of the coal Filed Date: 5/20/20. Administration industry, economic modeling, Accession Number: 20200520–5093. forecasting, coal supply and demand Comments Due: 5 p.m. ET 6/10/20. Agency Information Collection studies, and in guiding research and Docket Numbers: EG20–168–000. Extension development programs. This Applicants: Wheatridge Wind II, LLC. AGENCY: U.S. Energy Information information is used to assess the Description: Notice of Self- Administration (EIA), U.S. Department adequacy of coal resources to meet near Certification of Exempt Wholesale of Energy (DOE). and long term domestic demands and to Generator Status of Wheatridge Wind II, promote sound policymaking, efficient LLC. ACTION: Notice and request for markets, and public understanding of Filed Date: 5/20/20. comments. energy and its interaction with the Accession Number: 20200520–5094. Comments Due: 5 p.m. ET 6/10/20. SUMMARY: EIA submitted an information economy and the environment. collection request for a three-year (5) Annual Estimated Number of Take notice that the Commission extension, with no changes, as required Respondents: 1,164. received the following electric rate by the Paperwork Reduction Act of 1995 • Form EIA–3 will consist of 397 filings: to the Coal Markets Reporting System, respondents; Docket Numbers: ER10–1852–037. OMB Control Number 1905–0167. The • Form EIA–7A will consist of 692 Applicants: Florida Power & Light Coal Markets Reporting System (CMRS) respondents; Company. consists of 5 surveys including, Form • Form EIA–8A will consist of 48 Description: Notification of Change in EIA–3 Quarterly Survey of Non-Electric respondents; Status of Florida Power & Light Sector Coal Data, Form EIA–7A Annual • Form EIA–6 (standby) will consist Company. Survey of Coal Production and of 15 respondents; Filed Date: 5/19/20. Preparation, Form EIA–8A Annual • Form EIA–20 (standby) will consist Accession Number: 20200519–5155. Survey of Coal Stocks and Coal Exports, of 12 respondents; Comments Due: 5 p.m. ET 6/9/20. Form EIA–6 Emergency Coal Supply (6) Annual Estimated Number of Docket Numbers: ER19–1864–004. Survey (Standby), and Form EIA–20 Responses: 2,598. Applicants: Public Service Company Emergency Weekly Coal Monitoring (7) Annual Estimated Number of of Colorado. Survey for Coal Burning Power Burden Hours: 4,417. Description: Compliance filing: _ Producers (Standby). The CMRS collects (8) Annual Estimated Reporting and OATT Att N–LGIP–Order Compl– _ data on coal production, preparation, Recordkeeping Cost Burden: Additional Errata ER19–1864 to be effective 12/5/ distribution, foreign trade, costs to respondents are not anticipated 2019. consumption, prices, quality, and beyond costs associated with response Filed Date: 5/19/20. stocks. burden hours. The information is Accession Number: 20200519–5010. Comments Due: 5 p.m. ET 6/9/20. DATES: Comments on this information maintained in the normal course of business. The cost of the burden hours Docket Numbers: ER20–954–002. collection must be received no later Applicants: Ohio Power Company, than June 26, 2020. Written comments is estimated to be $353,978.38 (4,417 burden hours times $80.14 per hour). AEP Ohio Transmission Company, Inc., and recommendations for the proposed American Electric Power Service information collection should be sent Other than the cost of burden hours, EIA estimates that there are no additional Corporation, PJM Interconnection, within 30 days of publication of this L.L.C. notice to https://www.reginfo.gov/ costs for generating, maintaining and providing the information. Description: Compliance filing: AEP public/do/PRAMain. Find this submits Compliance Filing in ER20–954 particular information collection by Statutory Authority: 42 U.S.C. 7135, 15 re: ILDSA, SA No. 1336 to be effective selecting ‘‘Currently under 30-day U.S.C. 772(b), and 42 U.S.C. 7101 et seq. 4/4/2020. Review—Open for Public Comments’’ or Signed in Washington, DC, on May 21, Filed Date: 5/20/20. by using the search function. 2020. Accession Number: 20200520–5082. FOR FURTHER INFORMATION CONTACT: Thomas Leckey, Comments Due: 5 p.m. ET 6/10/20. Requests for additional information or Assistant Administrator, Office of Energy Docket Numbers: ER20–1333–001. copies of the forms and instructions Statistics, U.S. Energy Information Applicants: Public Service Company should be directed to Ms. Sara Hoff at Administration. of Colorado. (202) 586–1242, or by email at [FR Doc. 2020–11316 Filed 5–26–20; 8:45 am] Description: Tariff Amendment: PSC– [email protected]. The forms are BILLING CODE 6450–01–P BHS1–Evras–PLGIA–572–0.0.0–

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DeficiencyLtr_ER20–1333 to be effective Wind Farm GIA (J819) to be effective 5/ Any person desiring to intervene or 3/19/2020. 6/2020. protest in any of the above proceedings Filed Date: 5/20/20. Filed Date: 5/20/20. must file in accordance with Rules 211 Accession Number: 20200520–5122. Accession Number: 20200520–5020. and 214 of the Commission’s Comments Due: 5 p.m. ET 6/10/20. Comments Due: 5 p.m. ET 6/10/20. Regulations (18 CFR 385.211 and Docket Numbers: ER20–1395–000. Docket Numbers: ER20–1859–000. 385.214) on or before 5:00 p.m. Eastern Applicants: ND OTM LLC. Applicants: Tampa Electric Company. time on the specified comment date. Description: Supplement to March 26, Description: Motion for Waiver of Protests may be considered, but 2020 ND OTM LLC tariff filing (Asset Open Access Transmission Tariff intervention is necessary to become a Appendix). Provision, et al. of Tampa Electric party to the proceeding. Filed Date: 5/20/20. Company. eFiling is encouraged. More detailed Accession Number: 20200520–5095. Filed Date: 5/19/20. information relating to filing Comments Due: 5 p.m. ET 6/10/20. Accession Number: 20200519–5178. requirements, interventions, protests, Docket Numbers: ER20–1487–001. Comments Due: 5 p.m. ET 5/26/20. service, and qualifying facilities filings Applicants: Frontier Windpower II, Docket Numbers: ER20–1860–000. can be found at: http://www.ferc.gov/ LLC. Applicants: AEP Texas Inc. docs-filing/efiling/filing-req.pdf. For Description: Tariff Amendment: Description: § 205(d) Rate Filing: other information, call (866) 208–3676 Amendment to Application for Market- AEPTX-Helena Wind Interconnection (toll free). For TTY, call (202) 502–8659. Based Rate Authority to be effective 6/ Agreement to be effective 5/5/2020. Dated: May 20, 2020. 2/2020. Filed Date: 5/20/20. Nathaniel J. Davis, Sr., Filed Date: 5/19/20. Accession Number: 20200520–5058. Deputy Secretary. Accession Number: 20200519–5147. Comments Due: 5 p.m. ET 6/10/20. [FR Doc. 2020–11334 Filed 5–26–20; 8:45 am] Comments Due: 5 p.m. ET 5/29/20. Docket Numbers: ER20–1861–000. BILLING CODE 6717–01–P Docket Numbers: ER20–1854–001. Applicants: PJM Interconnection, Applicants: PJM Interconnection, L.L.C., Delaware Municipal Electric L.L.C. Corporation, Inc. DEPARTMENT OF ENERGY Description: Tariff Amendment: Description: § 205(d) Rate Filing: Amendment to ER20–1854–000 Re: Revised SA No. 2978, NITSA Among Federal Energy Regulatory AC2–138/AD2–044 WMPA 4869 to be PJM and Delaware Municipal Electric Commission effective 2/22/2019. Corp. to be effective 5/1/2020. [Docket No. RM16–17–000] Filed Date: 5/20/20. Filed Date: 5/20/20. Accession Number: 20200520–5098. Accession Number: 20200520–5064. Data Collection for Analytics and Comments Due: 5 p.m. ET 6/10/20. Comments Due: 5 p.m. ET 6/10/20. Surveillance and Market-Based Rate Docket Numbers: ER20–1855–000. Docket Numbers: ER20–1862–000. Purposes; Notice of Extension of Time Applicants: NSTAR Electric Applicants: ISO New England Inc., On May 6, 2020, the Edison Electric Company. New England Power Pool Participants Institute (EEI) submitted a motion Description: § 205(d) Rate Filing: Committee. requesting that the Commission extend Preliminary Engineering and Design Description: § 205(d) Rate Filing: the effective date of Order No. 860 and Agreement with Mayflower Wind Tariff Rev Related to Enhancements & the deployment of the market-based rate Energy LLC to be effective 5/19/2020. Clean-Up Changes Under the Billing database (MBR Database) by four Filed Date: 5/19/20. Policy to be effective 7/27/2020. months to February 1, 2021 and the due Accession Number: 20200519–5145. Filed Date: 5/20/20. date for initial baseline submission until Comments Due: 5 p.m. ET 6/9/20. Accession Number: 20200520–5068. June 1, 2021. Docket Numbers: ER20–1856–000. Comments Due: 5 p.m. ET 6/10/20. EEI asserts that good cause exists to Applicants: California Independent Docket Numbers: ER20–1863–000. grant the extension because the System Operator Corporation. Applicants: Ingenco Wholesale disruption caused by the COVID–19 Description: § 205(d) Rate Filing: Power, L.L.C. pandemic creates challenges in meeting 2020–05–19 Certificate of Concurrence Description: Baseline eTariff Filing: the implementation schedule for UFA among Atlas Solar LLC, SCE & Reactive Power Compensation Filing to established in Order No. 860. CAISO to be effective 4/14/2020. be effective 6/1/2020. Upon consideration, notice is hereby Filed Date: 5/19/20. Filed Date: 5/20/20. given that the effective date of Order No. Accession Number: 20200519–5151. Accession Number: 20200520–5086. 860 is extended to and including six Comments Due: 5 p.m. ET 6/9/20. Comments Due: 5 p.m. ET 6/10/20. months to April 1, 2021, and the Docket Numbers: ER20–1857–000. Docket Numbers: ER20–1864–000. deadline for baseline submissions is Applicants: El Paso Electric Company. Applicants: New England Power extended to and including August 2, Description: § 205(d) Rate Filing: Company. 2021. Further, other implementation Concurrence of EPE to APS Service Description: § 205(d) Rate Filing: dates in Order No. 860 are extended as Agreement No. 376 to be effective 12/9/ Filing to Revise Depreciation Rates in shown in the attached appendix. 2019. Service Agreement Nos. 20 and 23 to be Dated: May 20, 2020. Filed Date: 5/19/20. effective 7/1/2020. Kimberly D. Bose, Accession Number: 20200519–5154. Filed Date: 5/20/20. Secretary. Comments Due: 5 p.m. ET 6/9/20. Accession Number: 20200520–5126. Docket Numbers: ER20–1858–000. Comments Due: 5 p.m. ET 6/10/20. Appendix Applicants: Midcontinent The filings are accessible in the 1 Data Collection for Analytics & Surveillance and Independent System Operator, Inc. Commission’s eLibrary system by Market-Based Rate Purposes, Order No. 860, 168 Description: § 205(d) Rate Filing: clicking on the links or querying the FERC 61,039 (2019), order on reh’g, Order No. 860– 2020–05–20_SA 3496 ATC-Shullsburg docket number. A, 170 FERC 61,129 (2020).

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Order No. 860 Revised, six-month Activity schedule extension schedule

Testing period for the MBR Database ...... Through Sept. 30, 2020 ...... Through Mar. 31, 2021. Effective date of Order No. 860 ...... Oct. 1, 2020 ...... Apr. 1, 2021. ‘‘Go-live’’ date of MBR Database ...... Oct. 1, 2020 ...... Apr. 1, 2021. Sellers should create needed identifiers (FERC Generated IDs and Oct. 1, 2020–Dec. 31, 2020 ...... Apr. 1, 2021–June 30, 2021. Asset IDs) in the MBR Portal and prepare their baseline submis- sions. Baseline submissions are due ...... By Feb. 1, 2021 ...... By Aug. 2, 2021. First change in status filings under new timelines are due ...... By Feb. 28, 2021 ...... By Aug. 31, 2021.

[FR Doc. 2020–11332 Filed 5–26–20; 8:45 am] 20426. Hand delivered submissions in Description: § 4(d) Rate Filing: BILLING CODE 6717–01–P docketed proceedings should be Capacity Release Provision to be delivered to Health and Human effective 6/19/2020. Services, 12225 Wilkins Avenue, Filed Date: 5/19/20. DEPARTMENT OF ENERGY Rockville, Maryland 20852. Accession Number: 20200519–5015. In addition to publishing the full text Comments Due: 5 p.m. ET 6/1/20. Federal Energy Regulatory of this document in the Federal Commission Register, the Commission provides all Docket Numbers: RP20–877–000. [Docket No. ER20–1853–000] interested persons an opportunity to Applicants: Rockies Express Pipeline view and/or print the contents of this LLC. Whitehorn Solar LLC; Supplemental document via the internet through the Description: Compliance filing REX Notice That Initial Market-Based Rate Commission’s Home Page (http:// Filing Includes Request for Blanket 2020 Annual Penalty Revenue ferc.gov) using the eLibrary link. Enter Reconciliation. Section 204 Authorization the docket number excluding the last Filed Date: 5/19/20. three digits in the docket number field This is a supplemental notice in the Accession Number: 20200519–5133. above-referenced Whitehorn Solar LLC’s to access the document. At this time, the application for market-based rate Commission has suspended access to Comments Due: 5 p.m. ET 6/1/20. authority, with an accompanying rate the Commission’s Public Reference Docket Numbers: RP20–878–000. Room, due to the proclamation tariff, noting that such application Applicants: Tallgrass Interstate Gas declaring a National Emergency includes a request for blanket Transmission, LLC. authorization, under 18 CFR part 34, of concerning the Novel Coronavirus Description: Compliance filing TIGT future issuances of securities and Disease (COVID–19), issued by the 2020 Annual Penalty Revenue assumptions of liability. President on March 13, 2020. For Any person desiring to intervene or to assistance, contact the Federal Energy Reconciliation. protest should file with the Federal Regulatory Commission at Filed Date: 5/19/20. Energy Regulatory Commission, 888 [email protected] or call Accession Number: 20200519–5134. First Street NE, Washington, DC 20426, toll-free, (886) 208–3676 or TYY, (202) Comments Due: 5 p.m. ET 6/1/20. in accordance with Rules 211 and 214 502–8659. of the Commission’s Rules of Practice The filings are accessible in the Dated: May 20, 2020. Commission’s eLibrary system by and Procedure (18 CFR 385.211 and Nathaniel J. Davis, Sr., 385.214). Anyone filing a motion to clicking on the links or querying the Deputy Secretary. intervene or protest must serve a copy docket number. of that document on the Applicant. [FR Doc. 2020–11330 Filed 5–26–20; 8:45 am] Any person desiring to intervene or Notice is hereby given that the BILLING CODE 6717–01–P protest in any of the above proceedings deadline for filing protests with regard must file in accordance with Rules 211 to the applicant’s request for blanket and 214 of the Commission’s DEPARTMENT OF ENERGY authorization, under 18 CFR part 34, of Regulations (18 CFR 385.211 and future issuances of securities and Federal Energy Regulatory 385.214) on or before 5:00 p.m. Eastern assumptions of liability, is June 9, 2020. Commission time on the specified date(s). Protests The Commission encourages may be considered, but intervention is electronic submission of protests and Combined Notice of Filings necessary to become a party to the interventions in lieu of paper, using the proceeding. FERC Online links at http:// Take notice that the Commission has eFiling is encouraged. More detailed www.ferc.gov. To facilitate electronic received the following Natural Gas information relating to filing service, persons with internet access Pipeline Rate and Refund Report filings: requirements, interventions, protests, who will eFile a document and/or be Docket Numbers: RP20–874–000. service, and qualifying facilities filings listed as a contact for an intervenor Applicants: Rover Pipeline LLC. can be found at: http://www.ferc.gov/ must create and validate an Description: § 4(d) Rate Filing: docs-filing/efiling/filing-req.pdf. For eRegistration account using the Capacity Release Provision to be other information, call (866) 208–3676 eRegistration link. Select the eFiling effective 6/19/2020. (toll free). For TTY, call (202) 502–8659. link to log on and submit the Filed Date: 5/19/20. Dated: May 20, 2020. intervention or protests. Persons unable to file electronically Accession Number: 20200519–5013. Nathaniel J. Davis, Sr., may mail similar pleadings to the Comments Due: 5 p.m. ET 6/1/20. Deputy Secretary. Federal Energy Regulatory Commission, Docket Numbers: RP20–875–000. [FR Doc. 2020–11331 Filed 5–26–20; 8:45 am] 888 First Street NE, Washington, DC Applicants: ETC Tiger Pipeline, LLC. BILLING CODE 6717–01–P

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DEPARTMENT OF ENERGY Seong-Kook Berry (Technical encourage oil pipelines to file updated Information), Office of Energy Market FERC Form No. 6, page 700 data for Federal Energy Regulatory Regulation, 888 First Street NE, 2019 to reflect the revised ROE policy Commission Washington, DC 20426, (202) 502– established herein. 6544, [email protected] [Docket No. PL19–4–000] I. Background SUPPLEMENTARY INFORMATION: Inquiry Regarding the Commission’s 1. On March 21, 2019, the A. Natural Gas and Oil Pipeline ROE Policy for Determining Return on Commission issued a Notice of Inquiry Policy Equity (NOI) seeking information and 3. The Supreme Court has stated that stakeholder views to help the ‘‘the return to the equity owner should AGENCY: Federal Energy Regulatory Commission explore whether, and if so be commensurate with the return on Commission, DOE. how, it should modify its policies investments in other enterprises having ACTION: Policy statement on determining concerning the determination of the corresponding risks. That return, return on equity for natural gas and oil return on equity (ROE) to be used in moreover, should be sufficient to assure pipelines. designing jurisdictional rates charged by confidence in the financial integrity of public utilities.1 The Commission also the enterprise, so as to maintain its SUMMARY: On March 21, 2019, the sought comment on whether any credit and to attract capital.’’ 5 Federal Energy Regulatory Commission changes to its policies concerning 4. Since the 1980s, the Commission issued a notice of inquiry seeking public utility ROEs should be applied to has determined natural gas and oil information and stakeholder views interstate natural gas and oil pipelines.2 pipeline ROEs using the DCF model.6 regarding whether, and if so how, it On November 21, 2019, the Commission The DCF model is based on the premise should modify its policies concerning issued Opinion No. 569 3 establishing a that ‘‘a stock’s price is equal to the the determination of the return on revised methodology for determining present value of the infinite stream of equity (ROE) to be used in designing just and reasonable base ROEs for public expected dividends discounted at a jurisdictional public utility rates and utilities under the Federal Power Act market rate commensurate with the whether any changes to the (FPA). Concurrently with the issuance stock’s risk.’’ 7 The Commission uses the Commission’s policies concerning of this Policy Statement, the DCF model to estimate the return public utility ROEs should be applied to Commission is issuing Opinion No. necessary for the pipeline to attract interstate natural gas and oil pipelines. 569–A adopting changes to the base capital based upon the range of returns Concurrently with this Policy ROE methodology established in that the market provides investors in a Statement, the Commission is issuing Opinion No. 569.4 proxy group of publicly traded entities Opinion No. 569–A adopting changes to 2. As explained below, we revise our with similar risk profiles. The its policies concerning public utility policy for analyzing interstate natural Commission estimates the required rate ROEs. The Commission finds that, with gas and oil pipeline ROEs to adopt the of return for each member of the proxy certain exceptions to account for the methodology established for public group using the following formula: statutory, operational, organizational utilities in Opinion Nos. 569 and 569– k = D/P (1+.5g) + g and competitive differences among the A, with certain exceptions to account where k is the discount rate (or industries, the policy changes adopted for the statutory, operational, investors’ required return), D is the in Opinion No. 569–A should be organizational and competitive current dividend, P is the price of stock applied to natural gas and oil pipelines. differences among the industries. at the relevant time, and g is the Accordingly, the Commission revises its Specifically, we will determine just and expected growth rate in dividends based policy and will determine natural gas reasonable natural gas and oil pipeline upon the weighted averaging of short- ROEs by averaging the results of and oil pipeline ROEs by averaging the term and long-term growth estimates Discounted Cash Flow model (DCF) and results of the Discounted Cash Flow (referred to as the two-step procedure). Capital Asset Pricing Model (CAPM) model and the Capital Asset Pricing The Commission multiplies the analyses, according equal weight to both Model, but will not use the Risk dividend yield (dividends divided by models. In contrast to our methodology Premium model. In addition, the stock price or D/P) by the expression for public utilities, we retain the Commission clarifies its policies (1+.5g) to account for the fact that existing two-thirds/one-third weighting governing the formation of proxy groups dividends are paid on a quarterly basis. for the short-term and long-term growth and the treatment of outliers in For purposes of the (1+.5g) adjustment, projections in the DCF and will not use proceedings addressing natural gas and the Commission uses only the short- the risk premium model discussed in oil pipeline ROEs. Finally, the term growth projection.8 Commission encourages oil pipelines to Opinion No. 569 and modified in 5. In the two-step DCF model, the file revised FERC Form No. 6, page 700s Opinion No. 569–A (Risk Premium). In Commission computes the expected for 2019 reflecting the revised ROE addition, we clarify our policies growth rate (g) by giving two-thirds policy. governing the formation of proxy groups weight to a short-term growth projection and the treatment of outliers in natural DATES: This Policy Statement takes and one-third weight to a long-term gas and oil pipeline proceedings. effect May 27, 2020. Finally, as discussed below, we Evan Steiner (Legal Information), Office 5 Fed. Power Comm’n v. Hope Nat. Gas Co., 320 of the General Counsel, 888 First U.S. 591, 603 (1944) (citing Missouri ex rel. Sw. Bell 1 Inquiry Regarding the Commission’s Policy for Tel. Co. v. Pub. Serv. Comm’n of Mo., 262 U.S. 276, Street NE, Washington, DC 20426, Determining Return on Equity, 166 FERC ¶ 61,207, 291 (1923) (Brandeis, J., concurring)). (202) 502–8792, Evan.Steiner@ at P 1 (2019). 6 Composition of Proxy Groups for Determining ferc.gov 2 Id. Gas and Oil Pipeline Return on Equity, 123 FERC Monil Patel (Technical Information), 3 Ass’n of Bus. Advocating Tariff Equity v. ¶ 61,048, at P 3 (2008) (2008 Policy Statement). Office of Energy Market Regulation, Midcontinent Indep. Sys. Operator, Inc., Opinion 7 Canadian Ass’n of Petroleum Producers v. No. 569, 169 FERC ¶ 61,129 (2019). FERC, 254 F.3d 289, 293 (D.C. Cir. 2001) (CAPP v. 888 First Street NE, Washington, DC 4 Ass’n of Bus. Advocating Tariff Equity v. FERC). 20426, (202) 502–8296, Monil.Patel@ Midcontinent Indep. Sys. Operator, Inc., Opinion 8 Seaway Crude Pipeline Co. LLC, Opinion No. ferc.gov No. 569–A, 171 FERC ¶ 61,154 (2020). 546, 154 FERC ¶ 61,070, at PP 198–200 (2016).

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growth projection.9 For the short-term B. Other Financial Models return they expect to earn on a bond 22 growth projection, the Commission uses 7. In the NOI, the Commission sought investment.’’ This difference reflects security analysts’ five-year forecasts for comment on other financial models the the greater risk of a stock investment.23 each company in the proxy group, as Commission has considered when The risk premium return is calculated as published by the Institutional Brokers determining ROE for public utilities, follows: Estimated System (IBES).10 The long- including the CAPM, Risk Premium R = I + RP term growth projection is based on model, and an expected earnings forecasts, drawn from three different 17 where I represents current applicable 11 analysis (Expected Earnings). sources, of long-term growth of the bond yield and RP represents the risk economy as a whole as reflected in the 1. CAPM premium, which consists of the 12 Gross Domestic Product (GDP). For 8. Investors use CAPM analysis as a difference between (a) applicable annual proxy group members that are master measure of the cost of equity relative to common equity premiums and (b) limited partnerships (MLPs), the risk.18 The CAPM is based on the theory applicable bond yields. Commission adjusts the long-term that the market-required rate of return 10. Although there are multiple growth projection to equal 50% of for a security is equal to the ‘‘risk-free 13 approaches to determining an entity’s GDP. rate’’ plus a risk premium associated 6. Because most natural gas and oil with that security. The CAPM estimates equity risk premium (RP), the Risk pipelines are wholly owned subsidiaries cost of equity by adding the risk-free Premium model addressed in Opinion and their common stocks are not rate to the ‘‘market-risk premium’’ Nos. 569 and 569–A ‘‘examin[es] the publicly traded, the Commission must multiplied by ‘‘beta.’’ The formula for risk premiums implied in the returns on use a proxy group of publicly traded the CAPM is as follows: equity allowed by regulatory firms with corresponding risks to set a commissions for utilities over some past R = rf + ba(rm¥rf) range of reasonable returns.14 The firms period relative to the contemporaneous in the proxy group must be comparable rf = risk free rate (such as yield on 30- year U.S. Treasury bonds) level of the long-term U.S. Treasury to the pipeline whose ROE is being 24 rm = expected market return bond yield.’’ This approach develops determined, or, in other words, the ba = beta, which measures the volatility the equity risk premium using proxy group must be ‘‘risk- of the security compared to the rest of Commission-allowed ROEs for public appropriate.’’ 15 The range of the proxy the market. utilities minus the long-term bond yield. group’s returns produces the zone of reasonableness in which the pipeline’s The risk-free rate is represented by a 3. Expected Earnings ROE may be set based on specific risks. proxy, typically the yield on 30-year Absent unusual circumstances showing U.S. Treasury bonds. The market-risk 11. A comparable earnings analysis is that the pipeline faces anomalously high premium is calculated by subtracting a method of calculating the earnings an or low risks, the Commission sets the the risk-free rate from the ‘‘expected investor expects to receive on the book pipeline’s cost-of-service nominal ROE return,’’ which, in a forward-looking value of a particular stock.25 The at the median of the zone of CAPM analysis, is based on a DCF analysis can be either backward-looking reasonableness.16 analysis of a large segment of the using the company’s historical earnings market, such as the dividend paying on book value, as reflected on the 19 9 2008 Policy Statement, 123 FERC ¶ 61,048 at P companies in the S&P 500. Betas company’s accounting statements, or 6. measure the volatility of a particular forward-looking using estimates of 10 Id. stock relative to the market and are earnings on book value, as reflected in 11 The three sources used by the Commission are published by several commercial analysts’ earnings forecasts for the Global Insight: Long-Term Macro Forecast— sources.20 An entity may also seek to Baseline (U.S. Economy 30-Year Focus); Energy company. The latter approach is often apply a size premium adjustment to the Information Agency, Annual Energy Outlook; and referred to as an ‘‘Expected Earnings the Social Security Administration. CAPM zone of reasonableness to 12 2008 Policy Statement, 123 FERC ¶ 61,048 at P account for the difference in size analysis.’’ The Expected Earnings 6 (citing Nw. Pipeline Co., Opinion No. 396–B, 79 between itself and the dividend paying analysis provides an accounting-based FERC ¶ 61,309, at 62,383 (1997); Williston Basin companies in the S&P 500.21 approach that uses investment analyst Interstate Pipeline Co., 79 FERC ¶ 61,311, at 62,389 estimates of return (net earnings) on (1997), aff’d, Williston Basin Interstate Pipeline Co. 2. Risk Premium v. FERC, 165 F.3d 54, 57 (D.C. Cir. 1999)). book value (the equity portion of a 13 Id. P 96. 9. Risk premium methodologies are company’s overall capital, excluding 14 Petal Gas Storage, L.L.C. v. FERC, 496 F.3d 695, ‘‘based on the simple idea that since long-term debt).26 Algebraically, 697 (D.C. Cir. 2007) (explaining that the purpose of investors in stocks take greater risk than Expected Earnings can be expressed as a DCF proxy group is to ‘‘provide market- determined stock and dividend figures from public investors in bonds, the former expect to follows: companies comparable to a target company for earn a return on a stock investment that R = E/B which those figures are unavailable. Market- reflects a ‘premium’ over and above the determined stock figures reflect a company’s risk E = Earnings during Current Year level and when combined with dividend values, permit calculation of the ‘risk-adjusted expected 85 FERC ¶ 61,323 (1998), aff’d, CAPP v. FERC, 254 B = Book Value at the End of the Prior rate of return sufficient to attract investors.’ ’’ F.3d 289). Year (quoting CAPP v. FERC, 254 F.3d at 293)). 17 NOI, 166 FERC ¶ 61,207 at PP 35, 38. 15 Id. at 699; see also Portland Nat. Gas 18 Opinion No. 569, 169 FERC ¶ 61,129 at P 229. 22 Transmission Sys., Opinion No. 524, 142 FERC 19 Id. Opinion No. 569, 169 FERC ¶ 61,129 at P 304 ¶ 61,197, at P 302 (2013), reh’g denied, Opinion No. 20 NOI, 166 FERC ¶ 61,207 at P 14. (quoting Coakley v. Bangor Hydro-Elec. Co., Opinion No. 531, 147 FERC ¶ 61,234, at P 147 524–A, 150 FERC ¶ 61,107 (2015). 21 See Opinion No. 569, 169 FERC ¶ 61,129 at P (2014)). 16 El Paso Nat. Gas Co., Opinion No. 528, 145 298; see also Coakley v. Bangor Hydro-Elec. Co., 23 FERC ¶ 61,040, at P 592 (2013), order on reh’g, Opinion No. 531–B, 150 FERC ¶ 61,165, at P 117 Ass’n of Bus. Advocating Tariff Equity v. Opinion No. 528–A, 154 FERC ¶ 61,120 (2016), (2015) (citing Roger A. Morin, New Regulatory Midcontinent Indep. Sys. Operator, Inc., 165 FERC order on compliance & reh’g, Opinion No. 528–B, Finance, 187 (Public Utilities Reports, Inc. 2006) ¶ 61,118, at P 36 (2018) (MISO Briefing Order). 163 FERC ¶ 61,079 (2018) (citing Transcontinental (Morin) (finding that use of a size premium 24 Opinion No. 569, 169 FERC ¶ 61,129 at P 305. Gas Pipe Line Corp., Opinion No. 414–A, 84 FERC adjustment is ‘‘a generally accepted approach to 25 Id. P 172. ¶ 61,084 (1998), reh’g denied, Opinion No. 414–B, CAPM analyses’’)). 26 Opinion No. 569, 169 FERC ¶ 61,129 at P 172.

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C. Public Utility ROE Proceedings Commission explained that it would use screening criteria and appropriate high Following Emera Maine v. FERC the DCF model and CAPM in its ROE and low-end outlier tests.46 36 1. Briefing Orders and Trailblazer analyses under FPA section 206 and 17. Numerous entities and individuals give equal weight to both models.37 submitted comments in response to the 12. Following the decision of the However, contrary to the proposal in the United States Court of Appeals for the NOI. Below, we discuss the comments Briefing Orders, the Commission that are relevant to the revised policy for District of Columbia Circuit (D.C. declined to use either the Expected Circuit) in Emera Maine v. FERC,27 the natural gas and oil pipeline ROE Earnings analysis or Risk Premium methodologies that we adopt herein. Commission issued two briefing 38 28 model. The Commission also made orders in the fall of 2018 proposing a findings as to the DCF model and the II. Discussion new methodology for analyzing public CAPM and adopted specific low and utility ROEs under FPA section 206.29 18. Upon review of the comments and high-end outlier tests. The Commission preliminarily found based on the Commission’s findings in that ‘‘in light of current investor 3. Opinion No. 569–A Opinion Nos. 569 and 569–A, we revise behavior and capital market conditions, our policy for determining natural gas relying on the DCF methodology alone 15. In Opinion No. 569–A, the and oil pipeline ROEs. Under this will not produce a just and reasonable Commission modified the methodology revised policy, we will (1) determine ROE.’’ 30 The Commission found that established in Opinion No. 569 in ROE by averaging the results of DCF and investors appear to base their decisions several respects. First, as to the DCF CAPM analyses while retaining the on numerous financial models 31 and model, the Commission reduced the existing two-thirds/one-third weighting may give greater weight to models other weighting of the long-term growth of the short and long-term growth than the DCF in estimating the expected projection from one-third to 20% and projections in the DCF; (2) give equal returns from a utility investment.32 As modified the high-end outlier test weight to the DCF and CAPM analyses; such, the Commission proposed to adopted in Opinion No. 569.39 Second, (3) consider using Value Line data as the determine ROE for public utilities by as to the CAPM, the Commission source of the short-term growth averaging the results of DCF, CAPM, clarified that it will modify the high-end projection in the CAPM; (4) consider Expected Earnings, and Risk Premium outlier test adopted in Opinion No. proposals to include Canadian analyses, giving equal weight to each 569 40 and that it will consider, based on companies in pipeline proxy groups analysis. The Commission established evidence provided in future while continuing to apply our proxy paper hearings and directed the parties proceedings, use of Value Line data, group criteria flexibly until sufficient in those proceedings to file briefs in instead of IBES data, as the source of the proxy group members are obtained; (5) response. short-term growth projection in the DCF exclude Risk Premium and Expected 13. On February 21, 2019, while the component of the CAPM.41 Third, the Earnings analyses; and (6) continue to paper hearings were pending, the Commission adopted a modified version address outliers in pipeline proxy Commission found in Trailblazer 42 of the Risk Premium model. The groups on a case-by-case basis and Pipeline Company LLC that ‘‘investor Commission explained that it would refrain from applying specific outlier reliance upon multiple methodologies afford equal weighting to the DCF, tests. presumably applies to investments in CAPM, and Risk Premium analyses and 19. We are not persuaded to adopt any natural gas pipelines’’ as well as public denied requests for rehearing of its 33 additional policy changes at this time utilities. The Commission therefore decision to exclude Expected and will address all other issues permitted parties in that natural gas Earnings.43 pipeline cost-of-service rate proceeding concerning the determination of natural to address the four alternative financial D. NOI gas and oil pipeline ROEs as they arise models at hearing.34 in future proceedings. 16. In the NOI, the Commission 2. Opinion No. 569 requested comment on whether uniform A. Revised Policy for Determining 14. On November 21, 2019, the application of the Commission’s base Natural Gas and Oil Pipeline ROEs Commission issued Opinion No. 569 ROE policy across the electric, natural 1. Use of the DCF and CAPM adopting the proposal from the Briefing gas pipeline, and oil pipeline industries Orders, with several revisions.35 The is appropriate and advisable 44 and a. Background whether the Commission, if it departed 20. In the Briefing Orders, the 27 854 F.3d 9 (D.C. Cir. 2017). from its sole use of a two-step DCF Commission preliminarily found that 28 MISO Briefing Order, 165 FERC ¶ 61,118; methodology for public utilities, should Coakley v. Bangor Hydro-Elec. Co., 165 FERC since it began relying primarily on the ¶ 61,030 (2018) (Coakley Briefing Order, and also use its new method or methods to DCF model to determine ROE in the together with MISO Briefing Order, Briefing determine natural gas and oil pipeline 1980s, investors have increasingly used Orders). ROEs.45 The Commission also sought 29 16 U.S.C. 824e (2018). a diverse set of data sources and models comment on its guidelines for proxy 47 30 to inform their investment decisions. Coakley Briefing Order, 165 FERC ¶ 61,030 at group formation, including proxy group P 32; MISO Briefing Order, 165 FERC ¶ 61,118 at Because investors consider more than P 34. one financial model when making 31 Coakley Briefing Order, 165 FERC ¶ 61,030 at 36 Id. PP 1, 18. investment decisions, the Commission P 40; MISO Briefing Order, 165 FERC ¶ 61,118 at 37 Id. PP 276, 425. reasoned that relying on multiple P 42. 38 Id. PP 18, 31, 200, 340. 32 Coakley Briefing Order, 165 FERC ¶ 61,030 at 39 Opinion No. 569–A, 171 FERC ¶ 61,154 at PP models makes it more likely that the P 35; MISO Briefing Order, 165 FERC ¶ 61,118 at 57, 154. Commission’s decision will accurately P 37. 40 Id. P 154. reflect how investors are making their 33 166 FERC ¶ 61,141, at P 48 (2019). 41 Id. P 78. 34 Thereafter, participants in natural gas pipeline 42 rate proceedings in Docket Nos. RP19–352–000, Id. PP 104–114. 46 Id. P 34. RP19–1353–000, RP19–1523–000, and RP20–131– 43 Id. P 141. 47 Coakley Briefing Order, 165 FERC ¶ 61,030 at 000 filed testimony applying the alternative models. 44 NOI, 166 FERC ¶ 61,207 at P 29. P 40; MISO Briefing Order, 165 FERC ¶ 61,118 at 35 Opinion No. 569, 169 FERC ¶ 61,129 at P 18. 45 Id. P 32. P 42.

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investment decisions.48 The that there is no reason to consider should be commensurate with returns Commission later determined in additional models.55 on investments in other enterprises Trailblazer that investor reliance on 23. In contrast, natural gas and oil having corresponding risks. That return, multiple methodologies presumably pipelines and trade associations 56 argue moreover, should be sufficient to assure applies to investments in natural gas that it would be reasonable to consider confidence in the financial integrity of pipelines as well as public utilities.49 other models in addition to the DCF, the enterprise, so as to maintain its subject to modifications in recognition credit and to attract capital.’’ 61 Thus, a 21. The Commission departed from of the unique risks and regulatory key consideration in determining just sole reliance on the DCF model for framework applicable to the natural gas and reasonable utility ROEs is public utilities in Opinion No. 569, and oil pipeline industries.57 Generally, determining what ROE an entity must finding that investors have varying these entities contend that the offer in order to attract capital, i.e., preferences as to which of the various Commission’s findings that investors induce investors to invest in the entity methods for determining cost of equity rely upon multiple financial models in in light of its risk profile.62 As the they may use to inform their investment making investment decisions also apply Commission stated in Opinion No. 414– decisions and that the DCF and CAPM to investors in pipelines.58 B,63 ‘‘the cost of common equity to a are among the primary methods that c. Commission Determination regulated enterprise depends upon what investors use for this purpose.50 Thus, the market expects not upon precisely the Commission concluded that 24. Based on the Commission’s what is going to happen.’’ 64 Thus, in expanding its methodology for findings in Opinion No. 569, we revise determining what ROE to award a determining public utility ROEs to use our methodology for determining utility, we must look to how investors the CAPM in addition to the DCF model natural gas and oil pipeline ROEs to rely analyze and compare their investment will make it more likely that its on multiple financial models, rather opportunities. decisions will accurately reflect how than relying solely on the DCF model. 27. We find that the rationale set forth Specifically, we will determine pipeline investors make their investment in the Briefing Orders and Opinion No. ROEs using the DCF model and CAPM, decisions and produce cost-of-equity 569 for relying on CAPM in addition to but in contrast to our methodology for the DCF applies equally to natural gas estimates that more accurately reflect public utilities, we will not use the Risk what ROE a utility must offer to attract and oil pipelines. In those proceedings, Premium model. the Commission found that investors capital.51 The Commission further 25. As an initial matter, we note that employ various methods for explained that using the CAPM will also the D.C. Circuit has repeatedly observed determining cost of equity and that the mitigate the model risk that the DCF that the Commission is not required to DCF and CAPM are among the primary model may perform poorly in certain rely upon the DCF model alone or even methods investors use for this 52 circumstances. at all.59 As such, the Commission may purpose.65 In addition, the Commission ‘‘change its past practices,’’ such as b. NOI Comments found in Opinion No. 569 that both relying exclusively on the DCF model, record evidence and academic 22. Commenters are divided on ‘‘with advances in knowledge in its literature 66 indicated that CAPM is whether the Commission should expand given field or as its relevant experience its methodology for determining natural and expertise expands,’’ provided that it 61 Hope, 320 U.S. at 603; see also CAPP v. FERC, gas and oil pipeline ROEs to consider supplies ‘‘a reasoned analysis indicating 254 F.3d at 293 (‘‘In order to attract capital, a utility that prior policies and standards are must offer a risk-adjusted expected rate of return multiple models. Commenters sufficient to attract investors.’’). being deliberately changed, not casually 62 representing natural gas and oil pipeline 60 See Bluefield Waterworks & Improvement Co. shipper interests 53 urge the ignored.’’ v. Pub. Serv. Comm’n of W. Va., 262 U.S. 679, 692– 26. In Hope, the Supreme Court held Commission to continue relying solely 93 (1923) (discussing factors an investor considers that ‘‘the return to the equity owner in making investment decisions). on the DCF model to determine pipeline 63 Transcontinental Gas Pipe Line Corp., Opinion 54 ROEs. These commenters contend that 55 Airlines for America Initial Comments at 1–2, No. 414–B, 85 FERC ¶ 61,323 (1998). the DCF model is a standardized 5–7; Liquids Shippers Group Initial Comments at 64 Opinion No. 414–B, 85 FERC at 62,268; see also approach that promotes predictability 12–17; NGSA Initial Comments at 3–4, 10, 25; PGC/ Kern River Gas Transmission Co., Opinion No. 486– AF&PA Joint Comments at 6–8. B, 126 FERC ¶ 61,034, at P 120 (2009), order on for pipelines and shippers and assert 56 These commenters include: Association of Oil reh’g and compliance, Opinion No. 486–C, 129 Pipe Lines (AOPL); Interstate Natural Gas FERC ¶ 61,240 (2009). 48 See Coakley Briefing Order, 165 FERC ¶ 61,030 Association of America (INGAA); Magellan 65 Opinion No. 569, 169 FERC ¶ 61,129 at PP 34, at PP 36, 44; MISO Briefing Order, 165 FERC Midstream Partners, L.P., Plains Pipeline L.P.; 236; Coakley Briefing Order, 165 FERC ¶ 61,030 at ¶ 61,118 at PP 38, 46. SFPP, L.P. and Calnev Pipe Line LLC; and Tallgrass P 35; MISO Briefing Order, 165 FERC ¶ 61,118 at 49 Trailblazer, 166 FERC ¶ 61,141 at P 48. Energy, LP. P 37. 57 66 See, e.g., Jonathan B. Berk and Jules H. van 50 Opinion No. 569, 169 FERC ¶ 61,129 at PP 34, AOPL Initial Comments at 3, 8–9, 11–12; Binsbergen, Assessing Asset Pricing Models Using 171. INGAA Initial Comments at 40–41; Magellan Initial Revealed Preference, 119(1) Journal of Financial 51 Comments at 8–13; Plains Comments at 3–4; SFPP- Id. PP 31, 34, 452. Calnev Comments at 3–4; Tallgrass Initial Economics 1, 2 (2016) (‘‘We find that the CAPM is 52 Id. PP 39, 171. Comments at 1, 11. the closest model to the model that investors use 53 These commenters include: Airlines for 58 E.g., AOPL Initial Comments at 4, 11; Tallgrass to make their capital allocation decisions . . . America; Liquids Shippers Group; Natural Gas Initial Comments at 2. investors appear to be using the CAPM to make Supply Association (NGSA); American Public Gas 59 E.g., Tenn. Gas Pipeline Co. v. FERC, 926 F.2d their investment decisions.’’); Brad M. Barber, et al., Association (APGA); Process Gas Consumers Group 1206, 1211 (D.C. Cir. 1991) (explaining that the Which Factors Matter to Investors? Evidence from and American Forest & Paper Association (PGC/ Commission is free to reject the DCF, provided that Mutual Fund Flows, 29(10) The Review of Financial AF&PA); and the Canadian Association of it adequately explains its reasons for doing so); Studies 2600, 2639 (2016) (‘‘[W]hen we ran a horse Petroleum Producers (CAPP). NEPCO Mun. Rate Comm. v. FERC, 668 F.2d 1327, race between six asset-pricing models, the CAPM is 54 Airlines for America Initial Comments at 5–7; 1345 (D.C. Cir. 1981) (‘‘FERC is not bound ‘to the able to best explain variation in flows across mutual Liquids Shippers Group Initial Comments at 12–17, service of any single formula or combination of funds.’’); id. at 2624 (‘‘[T]he CAPM does the best job 22–25; NGSA Initial Comments at 3–6, 25, 27; formulas.’ ’’ (quoting FPC v. Nat. Gas Pipeline Co. of predicting fund-flow relations.’’); see also John R. APGA Comments at 3; PGC/AF&PA Joint Comments of Am., 315 U.S. 575, 586 (1942))). Graham and Campbell R. Harvey, The Theory and at 1–2, 6–8; see also CAPP Initial Comments at 27– 60 Opinion No. 569, 169 FERC ¶ 61,129 at P 32 Practice of Corporate Finance: Evidence from the 28 (lauding the DCF as superior and stating that (quoting Nuclear Energy Inst., Inc. v. EPA, 373 F.3d Field, 60(2) Journal of Financial Economics 187, investors most likely view the CAPM as a 1251, 1296 (D.C. Cir. 2004) (per curiam)) (internal 201 (2001) (explaining that ‘‘the CAPM is by far the supplementary model). citations and quotation marks omitted). Continued

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widely used by investors.67 These short-term growth projection for GDP since the issuance of Opinion No. findings apply to investors generally, purposes of the (1+.5g) adjustment to 414–A.76 As a result, investors may and we do not see, nor do the NOI dividend yield. As discussed below, in reasonably consider current public comments identify, any basis for contrast to our revised base ROE utility short-term growth projections to distinguishing between investors in methodology for public utilities as be more sustainable than when the public utilities and investors in natural adopted in Opinion No. 569–A, we will Commission adopted the existing gas and oil pipelines in this context. We retain the existing two-thirds/one-third weighting policy in 1998. It is therefore therefore find that investors in weighting for the short and long-term reasonable to afford greater weight to pipelines, like investors in public growth projections. the short-term growth projection and utilities, consider multiple models for lesser weight to the long-term growth a. NOI Comments measuring cost of equity, including the projection in determining cost of equity DCF model and CAPM, in making 30. Commenters that address the for public utilities.77 68 investment decisions. weighting of the growth projections in 33. This reasoning does not apply 28. Accordingly, under the rationale the DCF model are divided on whether with equal force to natural gas and oil set forth in Opinion No. 569, we will the Commission should retain the pipelines. Although the short-term expand our methodology for existing weighting, with AOPL and growth projections of natural gas and oil 71 determining natural gas and oil pipeline NGSA not proposing any adjustments pipelines are lower than in 1998, they ROEs and will consider the CAPM in and CAPP and INGAA proposing have not declined to the same extent as addition to the DCF model.69 We alternative weighting schemes. CAPP those of public utilities.78 As such, conclude that as with public utilities, contends that the Commission should investors could reasonably view expanding the methodology we use to accord the growth projections equal pipelines’ short-term growth projections determine ROE for natural gas and oil 72 weighting. INGAA, on the other hand, as less sustainable than the projections pipelines to include the CAPM in proposes to increase the weighting of of public utilities. Moreover, the shale addition to the DCF model will better the short-term projection to four-fifths gas revolution has caused the natural reflect how investors in those industries and reduce the weighting of the long- gas and oil pipeline industries to measure cost of equity while tending to 73 term projection to one-fifth. become more dynamic and less mature, reduce the model risk associated with which could undermine the reliability relying on the DCF model alone. This b. Commission Determination of pipelines’ short-term growth should result in our ROE analyses 31. The D.C. Circuit has recognized producing cost-of-equity estimates for that the Commission has discretion projections. natural gas and oil pipelines that more regarding its growth projection 34. For these reasons, we exercise our accurately reflect what ROE a pipeline weighting choices.74 Although the discretion to maintain our existing must offer in order to attract capital. Commission is reducing the weighting weighting scheme and will continue to of the long-term growth projection in accord two-thirds weighting to the 2. DCF public utility proceedings to one-fifth, short-term growth projection and one- 29. We decline to adopt any changes we find that distinctions between public third weighting to the long-term growth to the two-step DCF model that we utilities and natural gas and oil projection in natural gas and oil apply to natural gas and oil pipelines pipelines support exercising this pipeline proceedings. under our existing policy. We will discretion to continue affording one- 3. CAPM therefore continue to base the long-term third weighting to the long-term growth growth projection on forecasts of long- projections in our analyses of pipeline 35. We now turn to how we will term growth of GDP, adjust the long- ROEs. apply the CAPM to natural gas and oil term growth projection of MLPs to equal 32. The Commission adopted the pipelines. As discussed below, with 50% of GDP consistent with the 2008 existing two-thirds/one-third weighting regard to the calculation of the market Policy Statement,70 and use only the scheme in Opinion No. 414–A.75 As risk premium and the use of Value Line explained in Opinion No. 569–A, adjusted betas in pipeline proceedings, most popular method of estimating the cost of reducing the weighting of the long-term we adopt the policy established in equity capital.’’). Opinion No. 569. 67 Opinion No. 569, 169 FERC ¶ 61,129 at P 236. growth projection in DCF analyses of 68 See Trailblazer, 166 FERC ¶ 61,141 at P 48 public utilities is appropriate because (citing Coakley Briefing Order, 165 FERC ¶ 61,030 the short-term growth projections of 76 In Opinion No. 414–A, the short-term growth at PP 34–36). We note that with the exception of public utilities have declined relative to projections of the proxy group members averaged commenters supporting sole reliance on the DCF 11.33%, almost twice the long-term GDP growth model, commenters generally do not oppose use of projection of 5.45%. See id. at app. A. As explained the CAPM for natural gas and oil pipelines. See rates to increase. See, e.g., INGAA Initial Comments in Opinion No. 569–A, the average short-term CAPP Initial Comments at 28; INGAA Initial at 58–59. While the Commission continues to favor growth projections for the proxy group in one of the Comments at 41 (supporting use of DCF, CAPM, the 50% long-term growth adjustment for MLPs, public utility proceedings addressed therein had and Expected Earnings); AOPL Initial Comments at parties may present empirical evidence for an declined to 5.03%, as compared to a long-term GDP 8–9 (endorsing use of the proposed four-model alternative adjustment in cost-of-service rate growth projection in that proceeding of 4.39%. methodology, which includes CAPM, as a proceedings. Natural gas and oil pipelines that are Opinion No. 569–A, 171 FERC ¶ 61,154 at P 57. MLPs may not use alternative adjustments to reasonable approach for oil pipelines); Plains 77 Opinion No. 569–A, 171 FERC ¶ 61,154 at PP support their annual forms. Comments at 4 (same); SFPP-Calnev Comments at 57–58. 71 AOPL Initial Comments at 41; NGSA Initial 4 (same). 78 For example, using data from February 2020, Comments at 32–33; see also Magellan Initial 69 Opinion No. 569, 169 FERC ¶ 61,129 at P 236. the short-term growth projections of a hypothetical Comments at 23–24 (supporting two-thirds/one- 70 The Commission adopted the 50% long-term natural gas pipeline proxy group consisting of third weighting should Commission retain existing growth rate adjustment for MLPs in the 2008 Policy Enbridge Inc., TC Energy, National Fuel Gas two-step DCF). Statement in part because MLPs have limited Company, Kinder Morgan Inc., and Williams 72 investment opportunities and face pressure to CAPP Initial Comments at 40. Companies, Inc., average 5.92% relative to a GDP maintain a high payout ratio. See 2008 Policy 73 INGAA Initial Comments at 55. growth projection of 4.22%. By comparison, in one Statement, 123 FERC ¶ 61,048 at PP 95–96. 74 See CAPP v. FERC, 254 F.3d at 297 (holding of the public utility proceedings addressed in Commenters state that MLPs no longer face the that the Commission did not abuse its discretion in Opinion No. 569–A, the short-term growth same pressure to maintain a high payout ratio and reducing the weighting of the long-term growth projections of the proxy group averaged 5.03% often now generate growth internally through projection from one-half to one-third). relative to a projected growth in GDP of 4.39%. Id. retained earnings, which will cause their growth 75 Opinion No. 414–A, 84 FERC ¶ 61,084 (1998). P 57.

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a. Calculation of Market Risk Premium adjustment in the CAPM analysis.85 The of the 30-year U.S. Treasury average 36. As described above, the CAPM Commission affirmed these conclusions historical bond yield over a six-month 86 market risk premium is calculated by on rehearing. period outweigh factors supporting the use of the 20-year U.S. Treasury yield, subtracting the risk-free rate, which is ii. NOI Comments typically represented by a proxy such as including any potential benefit that may 38. INGAA, CAPP, and NGSA address the yield on 30-year U.S. Treasury come from using a data set covering a how the Commission should determine 92 bonds, from the expected market return. longer period. We affirm that the CAPM market risk premium in The expected market return can be conclusion here. pipeline proceedings. Regarding the estimated either using a backward- 41. Second, we will determine the risk-free rate, INGAA states that looking approach based upon realized expected market return using a one-step although the Commission could use market returns during a historical DCF analysis of the dividend paying either the 20-year or 30-year U.S. period, a forward-looking approach members of the S&P 500. As explained Treasury bond rate, it supports using the applying the DCF model to a in Opinion No. 569, using a DCF 20-year rate.87 As to the expected representative market index, such as the analysis of the dividend paying market return, INGAA supports using a S&P 500, or a survey of academic and members of the S&P 500 is a well- one-step DCF analysis of dividend investment professionals.79 recognized method of estimating the paying companies in the S&P 500.88 expected market return for purposes of i. Background CAPP and NGSA, by contrast, support the CAPM,93 and we find that this 37. In Opinion No. 569, the using a two-step DCF analysis that uses method is likewise reasonable for Commission adopted the use of the 30- both short-term and long-term growth purposes of applying the CAPM to year U.S. Treasury average historical rates.89 natural gas and oil pipelines. We also bond yield over a six-month period as iii. Commission Determination find that the reasons set forth in the risk-free rate.80 The Commission Opinion No. 569 for using a one-step explained that the six-month period 39. We adopt the policy established in DCF analysis, instead of a two-step should correspond as closely as possible Opinion No. 569. Thus, in determining analysis, in estimating the expected to the six-month financial study period the CAPM market risk premium for market return are equally valid in the used to produce the DCF study in the natural gas and oil pipelines, we will (1) context of natural gas and oil applicable proceeding.81 For the use, as the risk-free rate, the 30-year pipelines.94 Accordingly, for the reasons expected market return, the Commission U.S. Treasury average historical bond stated in Opinion No. 569,95 we will use adopted a forward-looking approach yield over a six-month period a one-step DCF analysis of the dividend based upon a one-step DCF analysis of corresponding as closely as possible to paying companies in the S&P 500 as the the dividend paying members of the the six-month financial study period expected market return in applying the S&P 500.82 The Commission rejected used to produce the DCF study in the CAPM under our revised ROE proposals to use a two-step DCF applicable proceeding, (2) estimate the methodology for natural gas and oil analysis for this purpose, finding that expected market return using a forward- pipelines. the rationale for incorporating a long- looking approach based on a one-step 42. Third, consistent with Opinion term growth projection in conducting a DCF analysis of all dividend paying No. 569, we will screen from the CAPM two-step DCF analysis of a specific companies in the S&P 500,90 and (3) analysis of natural gas and oil pipelines group of utilities does not apply when exclude S&P 500 companies with S&P 500 companies with growth rates conducting a DCF study of the growth rates that are negative or in that are negative or in excess of 20%. companies in the S&P 500 because (i) excess of 20%. The Commission has explained that the S&P 500 is regularly updated to 40. First, as the Commission such low or high growth rates are highly ensure that it only includes companies recognized in Opinion No. 531–B, 30- unsustainable and unrepresentative of with high market capitalization and year U.S. Treasury bond yields are a the growth rates of public utilities.96 We remains representative of the industries generally accepted proxy for the risk- find that these growth rates are likewise 91 in the economy of the United States and free rate in a CAPM analysis. We are not representative of sustainable growth (ii) the dividend paying members of the not persuaded to adopt INGAA’s rates for companies in pipeline proxy S&P 500 constitute a large portfolio of proposal to use the 20-year U.S. groups. We will therefore apply this stocks and therefore include companies Treasury bond yield for this purpose. growth rate screen as part of the CAPM at all stages of growth.83 Furthermore, The Commission determined in Opinion analysis in natural gas and oil pipeline the Commission found that S&P 500 No. 569 that factors supporting the use proceedings. companies with growth rates that are negative or in excess of 20% should be 85 Id. PP 296–303. b. Betas and Size Premium excluded from the CAPM analysis 84 and 86 Opinion No. 569–A, 171 FERC ¶ 61,154 at PP i. Background 75–77, 85. approved the use of a size premium 87 INGAA Initial Comments at 61. INGAA states 43. The Commission found in that unlike 30-year bonds, which were not issued Opinion Nos. 569 and 569–A that Value 79 Opinion No. 569, 169 FERC ¶ 61,129 at P 239 for a period of time, 20-year bond yields are Line adjusted betas are reasonable for (citing Morin at 155–162). available back to 1926 and will therefore allow the 80 Id. P 237. use of a full historical data set covering a longer use in the CAPM analysis for public 97 81 Id. PP 237–238. period. Id. utilities. The Commission explained 82 Id. P 260. Because the rationale for including 88 Id. (citing Ass’n of Bus. Advocating Tariff that there was substantial evidence that a long-term growth estimate in the DCF analysis of Equity v. Midcontinent Indep. Sys. Operator, Inc., investors rely on Value Line betas and a specific utility does not apply to the DCF analysis Opinion No. 551, 156 FERC ¶ 61,234, at PP 166–168 of a broad, representative market index with a wide (2016)). 92 variety of companies that is regularly updated, the 89 CAPP Initial Comments at 41; NGSA Initial Opinion No. 569, 169 FERC ¶ 61,129 at P 237. Commission held that the DCF analysis of the Comments at 33. 93 Id. P 260. dividend paying members of the S&P 500 should be 90 The appropriate data source for the short-term 94 Id. PP 262–266. a one-step DCF analysis that uses only short-term growth projection in the DCF component of the 95 See id. PP 260–276. growth projections. Id. PP 261–266. CAPM is addressed infra. 96 Id. P 268. 83 Id. PP 263–265. 91 Opinion No. 531–B, 150 FERC ¶ 61,165 at P 97 Id. P 297; Opinion No. 569–A, 171 FERC 84 Id. PP 267–268. 114 (citing Morin at 151–152). ¶ 61,154 at PP 75–76.

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observed that Dr. Morin supports the reasonable the use of Value Line while giving the remaining weight to use of adjusted betas in the CAPM. adjusted betas in the CAPM analysis as any other models the Commission 44. Moreover, the Commission also applied to natural gas and oil pipelines. decides to use.110 The Maryland OPC accepted the use of a size premium As the Commission has explained, there states that if the Commission uses adjustment derived using Duff & Phelps is substantial evidence indicating that multiple models, it should accord the raw betas based on a regression of the investors rely on Value Line betas in DCF model the majority of the monthly returns on the stock index that making their investment decisions, and weighting while giving the other models are in excess of a 30-year U.S. Treasury this finding presumably applies equally a minority weighting.111 INGAA and yield over the period of 1926 through to investors in natural gas and oil Tallgrass oppose equal weighting and the most recent period.98 The pipelines. Although we recognize that assert that the Commission should Commission affirmed that the use of the distinct risks facing interstate adopt a flexible weighting approach that such an adjustment was ‘‘a generally natural gas and oil pipelines may in allows it to exclude or give appropriate accepted approach to CAPM analyses’’ some cases bear upon whether an weight to any model in light of and determined that application of size alternative beta source would be more prevailing financial conditions and the premium adjustments based on the New appropriate, we will address such issues facts and circumstances of each case.112 York Stock Exchange (NYSE) to as they arise in specific proceedings. The New York State Public Service dividend paying members of the S&P 47. Likewise, we find reasonable the Commission (NYPSC) submits that the 500 is acceptable.99 The Commission use of the size premium adjustment Commission should give two-thirds acknowledged that there is imperfect based on the NYSE, as discussed in weighting to the DCF model and one- correspondence between the size premia Opinion Nos. 531–B 104 and 569.105 The third weighting to the CAPM.113 being developed with different betas, use of such adjustments is ‘‘a generally but concluded that the size premium accepted approach to CAPM analyses’’ c. Commission Determination adjustments improve the accuracy of that improves the accuracy of the CAPM 50. We adopt the rationale of Opinion CAPM results and cause the CAPM to results and causes such results to better Nos. 569 and 569–A and will give equal better correspond to the cost-of-capital correspond to the cost-of-capital weight to the DCF model and CAPM in estimates used by investors.100 The estimates that investors use in making determining natural gas and oil pipeline Commission also found that sufficient investment decisions.106 As such, we ROEs. As stated in Opinion No. 569, we academic literature exists to indicate find that use of these adjustments will find that neither the DCF model nor the that many investors rely on size improve the accuracy of cost-of-equity CAPM is conclusively superior and that premia.101 estimates for natural gas and oil giving both models equal weight will pipelines under our revised ROE mitigate the risks associated with the ii. NOI Comments methodology. potential errors or flaws in any one 45. A variety of commenters, model. The comments proposing including AOPL, INGAA, Magellan, 4. Weighting of Models alternative weighting schemes do not CAPP, and NGSA, support use of Value a. Background refute these concerns and are therefore Line adjusted betas in applying the 48. In Opinion No. 569, the unpersuasive. CAPM.102 INGAA adds that although Commission held that it would give 5. Data Sources Value Line betas, which are based on equal weight to the DCF model and five years of historical data, may be CAPM in analyzing ROE for public a. Background appropriate in most cases, it is possible utilities.107 The Commission found that 51. The Commission has historically that using betas based on five years of the evidence indicated that neither preferred IBES data as the source of the data may not reflect more recent events model was conclusively superior to the short-term growth projection in the DCF that have substantially changed the risk other and reasoned that giving each model.114 By contrast, because less characteristics of the natural gas model equal weight will reduce the precision was required of the CAPM pipeline industry. INGAA therefore model risk associated with any when the Commission used it only to states that in such circumstances, the particular model more than giving one corroborate the results of the DCF Commission should consider beta model greater weight than the other.108 analysis, the Commission allowed estimates calculated over shorter After expanding its public utility base parties to average IBES and Value Line 103 periods. ROE methodology in Opinion No. 569– growth projections in the DCF iii. Commission Determination A to include the Risk Premium model, component of the CAPM.115 the Commission held that it would 52. In Opinion 569, the Commission 46. We adopt the reasoning in accord equal weight to all three affirmed that it would use IBES Opinion Nos. 569 and 569–A and find models.109 projections as the sole source of the short-term growth projections in the 98 Opinion No. 569, 169 FERC ¶ 61,129 at PP 279, b. NOI Comments DCF model.116 The Commission also 296. 99 Id. P 296 (quoting Opinion No. 531–B, 150 49. Commenters propose various required the sole use of IBES projections FERC ¶ 61,165 at P 117). approaches to weighting the models for the DCF component of the CAPM, 100 Id. P 298. used to determine ROE. CAPP states explaining that because it would be 101 Id. PP 299–300. that the Commission should give the weighting the CAPM equally with the 102 AOPL Initial Comments at 42; INGAA Initial DCF model at least 50% weighting Comments at 62; Magellan Initial Comments at 27; 110 CAPP Initial Comments at 30. CAPP Initial Comments at 42; NGSA Comments at 104 Opinion No. 531–B, 150 FERC ¶ 61,165 at P 111 Maryland OPC Initial Comments at 12. 34; see also Maryland Office of People’s Counsel 117. 112 (Maryland OPC) Initial Comments at 21–22 (‘‘Value INGAA Initial Comments at 8–9; Tallgrass 105 Line is the most detailed and most trusted Opinion No. 569, 169 FERC ¶ 61,129 at P 296. Initial Comments at 12. investment source currently available in the 106 Id. PP 296–297 (quoting Opinion No. 531–B, 113 NYPSC Initial Comments at 18. industry. The Value Line beta is calculated over a 150 FERC ¶ 61,165 at P 117). 114 E.g., Nw. Pipeline Corp., 92 FERC ¶ 61,287, at long-term time period that dampens volatility and, 107 Id. PP 425, 427. 62,001–02 (2000) (quoting Opinion No. 396–B, 79 as such, is the most representative source now 108 Id. P 426. FERC at 62,385). available in the marketplace.’’). 109 Opinion No. 569–A, 171 FERC ¶ 61,154 at P 115 Opinion No. 551, 156 FERC ¶ 61,234 at P 169. 103 INGAA Initial Comments at 62. 141. 116 Opinion No. 569, 169 FERC ¶ 61,129 at P 120.

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DCF model in setting just and because they do not overlap with or newly adopting the CAPM, we find that reasonable ROEs, the CAPM must be duplicate IBES projections.121 INGAA it is appropriate to consider using a new implemented with the same degree of likewise supports use of Value Line data source within the CAPM. precision as the DCF model.117 The growth estimates to supplement the 6. Proxy Group Construction Commission explained that IBES data IBES three to five-year growth was preferable to Value Line data projections.122 In contrast, Magellan, a. Background because unlike Value Line projections, NGSA, and CAPP support the sole use 58. As discussed above, the which represent the estimates of a single of IBES growth forecasts, with CAPP companies included in a proxy group analyst at a single institution, IBES asserting that Value Line is inferior to must be comparable in risk to the projections generally represent IBES because it reflects the estimate of pipeline whose rate is being consensus growth estimates by a a single analyst.123 determined. To ensure that companies number of analysts from different c. Commission Determination included in pipeline proxy groups are firms.118 In addition, the Commission risk-appropriate, the Commission has noted that IBES growth projections are 55. With regard to the short-term required that each proxy group generally timelier than the Value Line growth projections in our DCF and company satisfy three criteria: (1) The projections because IBES updates its CAPM analyses of natural gas and oil company’s stock must be publicly database on a daily basis as pipelines, we adopt the policy set forth traded; (2) the company must be participating analysts revise their in Opinion No. 569–A. Therefore, in recognized as a natural gas or oil forecasts, whereas Value Line publishes natural gas and oil pipeline proceedings pipeline company and its stock must be its projections on a rolling quarterly we will (1) continue to prefer use of recognized and tracked by an basis.119 IBES three to five-year growth investment information service such as 53. In Opinion No 569–A, the projections as the short-term growth Value Line; and (3) pipeline operations Commission affirmed its preference for projection in the two-step DCF analysis must constitute a high proportion of the IBES data for the short-term growth and (2) allow participants to propose company’s business.124 In determining projection in the DCF model but granted using Value Line growth projections as whether a company’s pipeline rehearing of its decision to require sole the source of the short-term growth operations constitute a high proportion use of IBES data for the DCF component projection in the one-step DCF analysis of its business, the Commission has of the CAPM.120 Acknowledging its embedded within the CAPM. historically applied a 50% standard 56. We reiterate our belief that both concerns about Value Line data as requiring that the pipeline business IBES and Value Line growth estimates discussed in Opinion No. 569, the account for, on average, at least 50% of have advantages and that it is Commission nonetheless concluded that the company’s assets or operating appropriate to include both data sources use of these estimates will bring value income over the most recent three-year in determining ROEs. As in public to its revised ROE methodology. The period.125 Furthermore, in addition to utility proceedings, it is beneficial to Commission found that although Value the foregoing criteria, the Commission diversify the data sources used in our Line estimates come from a single has declined to include Canadian revised natural gas and oil pipeline ROE analyst, they include the input of companies in pipeline proxy groups.126 methodology because doing so may multiple analysts because they are 59. The Commission has explained better reflect the data sources that vetted through internal processes that proxy groups ‘‘should consist of at investors consider and mitigate the including review by a committee least four, and preferably at least five effect of any unusual data in either composed of peer analysts. Similarly, members’’ 127 and that pipeline proxy source. Although we have not groups should only exceed five the Commission found that there is previously used Value Line growth value in including Value Line estimates members if each additional member estimates in determining natural gas and satisfies the 50% standard.128 At the because they are updated on a more oil pipeline ROEs, we believe that predictable basis than IBES estimates. same time, the Commission has also including these estimates in our explained that although ‘‘adding more The Commission therefore concluded methodology will bring value to our that IBES and Value Line growth members to the proxy group results in analysis because they are updated on a greater statistical accuracy, this is true estimates both have advantages and that more predictable basis than IBES it is appropriate to consider both data estimates and reflect the consensus sources in determining public utility 124 2008 Policy Statement, 123 FERC ¶ 61,048 at growth estimates of multiple analysts. P 8. ROEs. In light of the Commission’s By contrast, IBES projections are 125 Opinion No. 486–B, 126 FERC ¶ 61,034 at PP longstanding use of IBES data in the updated on an irregular basis as analysts 8, 59. DCF model, the Commission revise their forecasts. 126 For example, in Opinion No. 486–B, the determined that it was appropriate to 57. Consistent with our policy for Commission excluded TransCanada Corporation consider using Value Line in the newly from the proxy group in a natural gas pipeline public utilities, we consider using Value proceeding based in part on the fact that its adopted CAPM. Line growth estimates in our revised Canadian pipeline ‘‘was subject to a significantly b. NOI Comments natural gas and oil pipeline ROE different regulatory structure that renders it less methodology in the CAPM while comparable to domestic pipelines regulated by the Commission.’’ Id. P 60. The Commission again 54. Commenters are divided on the continuing our longstanding use of IBES data source the Commission should use affirmed the exclusion of TransCanada Corporation three to five-year growth estimates as in Opinion No. 528, finding that it was ‘‘subject to for the short-term growth projection in the source of the short-term growth the vagaries of Canadian regulation and Canadian pipeline proceedings. AOPL states that projection in the DCF. As discussed in capital markets, thereby making it difficult to the Commission should allow oil Opinion No. 569–A, because we are establish comparable risk.’’ Opinion No. 528, 145 pipelines to use Value Line projections FERC ¶ 61,040 at P 626. 127 Opinion No. 486–B, 126 FERC ¶ 61,034 at P 121 AOPL Initial Comments at 38. 104. 117 Id. P 276. 122 INGAA Initial Comments, Attachment A at 128 See Portland Nat. Gas Transmission Sys., 118 Id. P 125. 28–33 (Affidavit of Dr. Michael J. Vilbert). Opinion No. 510, 134 FERC ¶ 61,129, at P 215 119 Id. P 128. 123 Magellan Initial Comments at 20; NGSA Initial (2011) (declining to include company that failed 120 Opinion No. 569–A, 171 FERC ¶ 61,154 at PP Comments at 29–30; CAPP Initial Comments at 36– 50% standard because proxy group had more than 78–83. 37, 39. five members).

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only if the additional members are relaxing the 50% standard when that in light of continuing difficulties in appropriately included in the proxy necessary to obtain five proxy group forming sufficiently sized natural gas group as representative firms.’’ 129 members.133 AOPL, INGAA, and and oil pipeline proxy groups, we will 60. The number of companies Tallgrass assert that the Commission consider proposals to include satisfying the Commission’s historical should not apply the 50% standard as otherwise-eligible Canadian entities.142 proxy group criteria in pipeline a rigid screen and continue to allow the We recognize that difficulties in forming proceedings has declined in recent inclusion of companies that do not a proxy group of sufficient size may be years, resulting in inadequately sized satisfy the 50% standard but are enhanced under current market proxy groups. Consolidation in the nonetheless significantly involved in conditions, including those resulting natural gas and oil pipeline industries jurisdictional natural gas and oil from the COVID–19 pandemic. In light has resulted in the absorption of many pipeline operations.134 NGSA and PGC/ of these conditions, the Commission natural gas and oil pipeline companies AF&PA likewise support continued will consider adjustments to our ROE into larger, diversified energy flexibility in the construction of policies where necessary.143 companies that own a variety of energy- pipeline proxy groups.135 65. As discussed above, the problem related assets in addition to interstate 63. Other commenters urge the of the shrinking pipeline proxy groups pipelines. In addition, major companies Commission to adopt more drastic persists due to, among other issues, the in the oil pipeline industry have changes to its proxy group formation consolidation of pure play natural gas recently acquired natural gas pipeline policies. For example, Magellan states and oil pipelines into diversified energy assets.130 The proliferation of these that the Commission should allow the companies and acquisitions of pipeline diversified energy companies has inclusion of risk-appropriate non-energy companies by private firms. These reduced the number of companies companies in natural gas and oil developments have reduced the number satisfying the 50% standard. Recent pipeline proxy groups 136 while APGA of publicly traded companies eligible for acquisitions of pipeline companies by recommends permitting the inclusion of inclusion in a proxy group under the private equity firms have further natural gas distributors.137 INGAA Commission’s historical criteria, making reduced the number of eligible natural proposes several additional changes to it difficult for the Commission to gas and oil pipeline proxy group the Commission’s natural gas pipeline develop an adequate sample of members by converting those pipeline proxy group policy,138 including representative firms to estimate a companies from publicly traded to allowing for the inclusion of risk- pipeline’s required cost of equity. As privately held entities. comparable Canadian companies with such, we will continue to apply the 50% 61. To address the problem of the significant U.S. interstate natural gas standard flexibly, based on the record shrinking natural gas and oil pipeline pipeline assets in natural gas pipeline evidence and in accordance with the proxy groups, the Commission has proxy groups.139 NGSA also supports Commission’s past practice, when relaxed the 50% standard when this proposal.140 Moreover, INGAA and necessary to construct a proxy group of necessary to construct a proxy group of Tallgrass propose using the financial at least five members. five members.131 66. In addition, we find that the NOI The Commission has metric ‘‘beta’’ to assist in determining comments advance credible reasons emphasized, however, that it will only whether potential proxy group members why it may be appropriate to permit the include firms not satisfying the 50% are comparable in risk to the pipeline at standard until five proxy group inclusion of Canadian entities in natural issue.141 members are obtained.132 gas and oil pipeline proxy groups. c. Commission Determination Extending proxy group eligibility to b. NOI Comments 64. Based on our review of our current such entities could alleviate the 62. Commenters recognize the shrinking proxy group problem by policy and upon consideration of the ongoing difficulties in forming pipeline adding new potential proxy group comments to the NOI, we will maintain proxy groups of sufficient size and members. As explained above, the a flexible approach to forming natural support the Commission’s policy of Commission has previously excluded gas and oil pipeline proxy groups and companies from pipeline proxy groups continue to relax the 50% standard 129 Opinion No. 486–B, 126 FERC ¶ 61,034 at P based on concerns that the fact that such when necessary to obtain a proxy group 104. entities are subject to Canadian 130 of five members. In addition, we clarify Examples of such transactions include regulation and Canadian capital markets Enbridge Inc.’s acquisition of Spectra Energy Corp., makes it difficult to establish whether TC Energy Corporation’s acquisition of Columbia 133 E.g., CAPP Initial Comments at 19; AOPL Pipeline Group, Inc., and IFM Investors’ acquisition Initial Comments at 35; NGSA Initial Comments at of Buckeye Partners LP. 11. 142 While the Commission has preferred screens 131 E.g., Opinion No. 528, 145 FERC ¶ 61,040 at 134 See AOPL Initial Comments at 15, 17–18, 35; and methods for selecting companies that will P 635; Opinion No. 486–B, 126 FERC ¶ 61,034 at INGAA Initial Comments at 24, 29–30; Tallgrass compose a proxy group, parties may continue to PP 67–75, 94–96 (including two firms not satisfying Initial Comments at 9. propose alternative screens and methods in cost-of- the 50% standard in natural gas pipeline proxy 135 NGSA Initial Comments at 11, 17; PGC/ service rate proceedings. group after application of the Commission’s AF&PA Joint Comments at 9–10. 143 See, e.g., SFPP, L.P., Opinion No. 511, 134 traditional criteria resulted in a proxy group of only 136 Magellan Initial Comments at 15; see also FERC ¶ 61,121, at P 209 (2011) (departing from the three members); Williston Basin Interstate Pipeline NextEra Transmission, LLC Initial Comments at 5– Commission’s general policy to determine ROE Co., 104 FERC ¶ 61,036, at PP 35–37, 43 (2003), 6. Most commenters oppose including non-energy using the most recent data in the record and order on reh’g and compliance, 107 FERC ¶ 61,164 companies in pipeline proxy groups. E.g., AOPL determining nominal ROE using earlier data where (2004). Initial Comments at 32; Tallgrass Initial Comments the most recent data reflected the collapse of the 132 Opinion No. 528–A, 154 FERC ¶ 61,120 at P at 9; CAPP Initial Comments at 21; NGSA Initial stock market in late 2008 and thus was not 236 (‘‘[W]e will relax the [50 percent] standard only Comments at 19; PGC/AF&PA Joint Comments at representative of the pipeline’s long-term equity if necessary to establish a proxy group consisting 10. cost of capital), order on reh’g, Opinion No. 511– of at least five members’’); Opinion No. 510, 134 B, 150 FERC ¶ 61,096 (2015) remanded on other 137 APGA Comments at 10. FERC ¶ 61,129 at P 167 (‘‘[I]n order to achieve a grounds sub nom. United Airlines, Inc. v. FERC, 827 138 proxy group of at least five firms, a diversified INGAA Initial Comments at 24–25, 29–37, 40; F.3d 122 (D.C. Cir. 2016), order on remand and natural gas company not satisfying the historical [50 INGAA Reply Comments at 6–12. compliance filing, Opinion No. 511–C, 162 FERC percent] standard could be included in the proxy 139 INGAA Initial Comments at 30. ¶ 61,228, at PP 46–53 (2018); see also Trunkline Gas group, but only if there is a convincing showing 140 NGSA Initial Comments at 11. Co., Opinion No. 441, 90 FERC ¶ 61,017, at 61,049 that an investor would view that firm as having 141 INGAA Initial Comments at 24–25, 34–35; (2000) (‘‘The Commission seeks to find the most comparable risk to a pipeline.’’). Tallgrass Initial Comments at 6–7. representative figures on which to base rates.’’).

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they are comparable in risk to 68. In Opinion No. 569–A, the determining pipeline ROEs. While we Commission-regulated pipelines.144 We Commission granted rehearing and do not adopt the Risk Premium model note, however, that considerations adopted a modified Risk Premium in our revised methodology here for the underlying those decisions may have model for use in ROE analyses under reasons discussed above, we do not changed since the Commission FPA section 206. Unlike the Risk necessarily foreclose its use in future established that policy.145 Therefore, in Premium model discussed in Opinion proceedings if parties can demonstrate future natural gas and oil pipeline No. 569, the modified Risk Premium that the concerns discussed above have proceedings, we will consider proposals model excludes problematic cases from been addressed. to include in the proxy group risk- the analysis, such as those where an 2. Expected Earnings appropriate Canadian entities that entity joined a Regional Transmission otherwise satisfy the Commission’s Organization (RTO), and the a. Background proxy group eligibility requirements. Commission, without reexamination, 72. In Opinion No. 569, the allowed adoption of the existing RTO- B. Excluded Financial Models Commission excluded the Expected wide ROE. The Commission explained Earnings model from its revised base 1. Risk Premium that, as modified, the Risk Premium ROE methodology for public utilities model adds benefits to the ROE analysis because the record did not support a. Background through model diversity and reduced departing from the Commission’s 67. In Opinion No. 569, the volatility that outweigh the traditional use of market-based Commission excluded the Risk disadvantages identified in Opinion No. approaches to determine base ROE.151 Premium model from its revised ROE 569.149 The Commission also found that the methodology for public utilities.146 The b. NOI Comments record did not demonstrate that Commission found that the Risk investors rely on Expected Earnings Premium model is largely redundant 69. INGAA, AOPL, NGSA, and CAPP when making investment decisions.152 with the CAPM because, although they assert that the Risk Premium model 73. The Commission explained that in rely on different data sources to cannot be applied to natural gas and oil determining a just and reasonable ROE determine the risk premium, both pipelines in light of the lack of stated under Hope, it must analyze the returns models use indirect measures (i.e., past allowed ROEs from settlements or that are earned on ‘‘investments in other Commission orders in the Risk Premium Commission decisions in pipeline enterprises having corresponding model and S&P 500 data in the CAPM) proceedings. Because the Risk Premium risks.’’ 153 In contrast to market-based to ascertain the risk premium that model relies upon Commission-allowed models, the accounting-based Expected investors require over the risk-free rate ROEs to estimate the equity risk Earnings model uses estimates of return of return.147 The Commission also premium, these commenters state that it on an entity’s book value to estimate the found that the Risk Premium model is would be difficult, if not impossible, to 150 earnings an investor expects to receive likely to provide a less accurate current apply this model in pipeline cases. on the book value of a particular cost-of-equity estimate than the DCF c. Commission Determination stock.154 As investors cannot invest in model or CAPM because whereas those 70. We will not use the Risk Premium an enterprise at book value, the models apply a market-based method to model in our revised ROE methodology. Commission concluded that the primary data, the Risk Premium model As commenters observe, there is expected return on a utility’s book value relies on previous ROE determinations insufficient data to apply the Risk does not reflect ‘‘returns on investments whose resulting ROE may not Premium models considered in Opinion in other enterprises’’ because in most necessarily be directly determined by a Nos. 569 and 569–A to natural gas or oil circumstances book value does not market-based method.148 pipelines. That model relies upon stated reflect the value of any investment that ROEs approved in past Commission 144 is available to an investor in the Opinion No. 528, 145 FERC ¶ 61,040 at P 626; 155 Opinion No. 486–B, 126 FERC ¶ 61,034 at P 60. orders, such as orders on settlements, to market. The Commission thus found 145 For instance, a 2009 rate case decision by the ascertain the risk premium that that return on book value is not National Energy Board of Canada (NEB) may be investors require. In recent years, indicative of what return an investor instructive. National Energy Board of Canada, RH– however, natural gas and oil pipeline requires to invest in the utility’s equity 1–2008 Reasons for Decision, Trans Que´bec & cost-of-service rate proceedings have Maritimes Pipelines Inc., March 2009, available at or what return an investor receives on 156 http://www.regie-energie.qc.ca/audiences/3690-09/ frequently resulted in ‘‘black box’’ the equity investment. RepDDRGM_3690-09/B-29_GM_Reasons-Decision- settlements instead of a fully litigated 74. On rehearing, the Commission RH-1-2008_3690_30juin09.pdf (Trans Que´bec). In Commission decision. Unlike public affirmed the exclusion of the Expected that decision, the NEB revised its ratemaking policy utility proceedings, where ROE may be by adopting an after-tax weighted average cost-of- Earnings model in those proceedings for capital approach to determining pipeline cost of addressed on a standalone basis as a the reasons stated in Opinion No. capital. Id. at 18–19. The NEB also accepted component of formula rates, settlements 569.157 The Commission found, evidence that the Canadian and U.S. financial in pipeline proceedings typically do not moreover, that the Expected Earnings markets are integrated and, as a result, Canadian enumerate a stated ROE. pipelines and U.S. pipelines compete for capital. Id. model does not accurately measure the at 66–68 (finding that ‘‘Canadian and U.S. pipelines 71. Consequently, for natural gas and returns that investors require to invest operate in what the Board views as an integrated oil pipelines, there is insufficient data to in public utilities because the current North American natural gas market.’’). The NEB estimate cost of equity using the Risk market values of utility stocks also found that although the risks facing U.S. and Premium models discussed in Opinion Canadian pipelines are not identical, those risks 151 ‘‘are not so different as to make them inappropriate Nos. 569 and 569–A. In light of this lack Opinion No. 569, 169 FERC ¶ 61,129 at PP comparators’’ and in fact share ‘‘many similarities.’’ of data, we will not use these models in 200–201. Id. at 68. As such, the NEB found that U.S. 152 Id. PP 212–218. 153 pipelines ‘‘have the potential to act as a useful 149 Opinion No. 569–A, 171 FERC ¶ 61,154 at PP Id. P 201 (quoting Hope, 320 U.S. at 603). proxy’’ for use in determining the appropriate ROE 104–114. 154 Id. P 172. for Canadian pipelines. Id. at 67. 150 INGAA Initial Comments at 41–42; AOPL 155 Id. P 201. 146 Opinion No. 569, 169 FERC ¶ 61,129 at P 340. Initial Comments at 12, 27–28; NGSA Initial 156 Id. PP 202, 211. 147 Id. P 341. Comments at 10–11, 24; CAPP Initial Comments at 157 Opinion No. 569–A, 171 FERC ¶ 61,154 at PP 148 Id. P 342. 11–12. 125–131.

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substantially exceed utilities’ book would require in order to purchase 80. Conversely, the Commission has value. As a result, a utility’s expected stock in the pipeline at its current applied specific outlier screens to earnings on its book value will market price. However, the return on public utilities. Prior to Opinion No. inevitably exceed the return that book value measured under the 569, the Commission excluded as low- investors require in order to purchase Expected Earnings model does not end outliers companies whose ROEs the utility’s higher-value stock.158 permit such an analysis. Like investors failed to exceed the average 10-year bond-yield by approximately 100 basis b. NOI Comments in utilities, investors in natural gas and oil pipelines cannot invest at the points on the ground that investors 75. Commenters that support pipeline’s book value and must instead generally cannot be expected to expanding the Commission’s pipeline pay the prevailing market price. As purchase a common stock if debt, which ROE methodology to consider models in such, the expected return on the has less risk than a common stock, addition to the DCF 159 do not oppose pipeline’s book value does not reflect yields essentially the same expected using the Expected Earnings model. the value of an investment that is return.168 In the Briefing Orders, the INGAA supports use of the Expected available to an investor in the market Commission proposed to treat as high- Earnings model to determine natural gas and thus does not reflect the ‘‘returns on end outliers any proxy company whose 160 pipeline ROEs, and AOPL states that investments in other enterprises having cost of equity estimated under the the Expected Earnings model can be corresponding risks’’ that we must model in question is more than 150% of applied to oil pipelines if the analyze under Hope.165 Likewise, the the median result of all of the potential Commission adopts an appropriate return on a pipeline’s book value does proxy group members in that model 161 approach to outliers. Among the not reflect ‘‘the return to the equity before any high-end or low-end outlier commenters that oppose applying the owner’’ that we must consider under test is applied.169 Expected Earnings model to natural gas Hope because the return that an investor 81. In Opinion No. 569, the and oil pipelines, NGSA criticizes the requires to invest in the pipeline’s Commission adopted a revised low-end Expected Earnings model for ignoring outlier test that eliminates proxy group 162 equity and the return an investor capital markets while CAPP asserts receives on the equity investment are ROE results that are less than the yields that the Expected Earnings model determined based on the current market of generic corporate Baa bond plus 20% 170 appears to be confined to academic uses price the investor must pay in order to of the CAPM risk premium. The and, in any event, there is likely an invest in the pipeline’s equity.166 Commission explained that it was insufficient number of pipelines to 78. Accordingly, based on the record necessary to include a risk premium in implement the Expected Earnings in this proceeding, we conclude that at the low-end outlier test to account for model.163 this time relying on the Expected the fact that declining bond yields have c. Commission Determination Earnings model to determine pipeline caused the ROE that investors would consider to yield ‘‘essentially the same 76. We will not use the Expected ROEs would not satisfy the requirements of Hope. We will therefore expected return as a bond’’ to Earnings model to determine ROE for 171 exclude the Expected Earnings model increase. The Commission concluded natural gas and oil pipelines for the that the 20% risk premium was reasons stated in Opinion No. 569. We from our revised methodology for determining natural gas and oil pipeline reasonable because it is sufficiently conclude that the findings underlying large to account for the additional risks the Commission’s decision to exclude ROEs. While we do not adopt the Expected Earnings model in our revised of equities over bonds, but not so large the Expected Earnings model from our as to inappropriately exclude proxy methodology here for the reasons analysis of public utility ROEs also group members whose ROE is discussed above, we do not necessarily support excluding that model from our distinguishable from debt.172 analysis of natural gas and oil pipeline foreclose its use in future proceedings if 82. In addition, Opinion No. 569 ROEs. parties can demonstrate that the adopted the high-end outlier test 77. As discussed above, the concerns discussed above have been proposed in the Briefing Orders.173 The Commission must ensure that the addressed. Commission reasoned that because the ‘‘return to the equity owner’’ is C. Outlier Tests Commission will continue to use the ‘‘commensurate with returns on midpoint as the measure of central investments in other enterprises having 1. Background tendency for region-wide public utility 164 corresponding risks.’’ As with public 79. Generally, the Commission has ROEs, a high-end outlier test was utilities, under the market-based not applied a specific low-end or high- necessary to eliminate proxy group approach the Commission performs this end outlier test in natural gas and oil members whose ROEs are unreasonably analysis by setting a pipeline’s ROE to pipeline proceedings. Rather, the high.174 equal the estimated return that investors Commission has used a fact-specific 83. The Commission explained that analysis to select proxy group members. both the low-end and high-end outlier 158 Id. P 127. In constructing pipeline proxy groups, tests would be subject to a natural-break 159 As noted above, several commenters, analysis, which determines whether including Airlines for America, Liquids Shippers the Commission excludes anomalous Group, NGSA, APGA, and PGC/AF&PA assert that and illogical proxy group returns that do the Commission should continue relying solely on not provide meaningful indicia of the 168 Opinion No. 569, 169 FERC ¶ 61,129 at P 379 the DCF model in analyzing pipeline ROEs. return a pipeline requires to attract (citing Pioneer Transmission, LLC, 126 FERC 160 ¶ 61,281, at P 94 (2009), reh’g denied, 130 FERC INGAA Initial Comments at 8, 41, 63; INGAA 167 Reply Comments at 1–2. capital. ¶ 61,044 (2010); S. Cal. Edison Co., 131 FERC 161 AOPL Initial Comments at 28l; see also Plains ¶ 61,020, at PP 54–56 (2010)). Initial Comments at 4; Magellan Initial Comments 165 See Opinion No. 569, 169 FERC ¶ 61,129 at P 169 MISO Briefing Order, 165 FERC ¶ 61,118 at P at 12–13, 28–29 (stating that Expected Earnings 201. 54; Coakley Briefing Order, 165 FERC ¶ 61,030 at P 53. should be used only in conjunction with other 166 See id. P 202. 170 Opinion No. 569, 169 FERC ¶ 61,129 at P 387. models such as the DCF, CAPM, and Risk 167 See Opinion No. 546, 154 FERC ¶ 61,070 at P 171 Premium). 196; 2008 Policy Statement, 123 FERC ¶ 61,048 at Id. 162 NGSA Initial Comments at 34. P 79 (‘‘[T]he Commission will continue to exclude 172 Id. P 388. 163 CAPP Initial Comments at 13, 27. an MLP from the proxy groups if its growth 173 Id. P 375. 164 Hope, 320 U.S. at 603. projection is illogical or anomalous.’’). 174 Id.

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proxy group companies screened as contrast, states that the outlier tests 90. We also clarify that we do not outliers, or those almost screened as proposed in the Briefing Orders would anticipate applying a natural break outliers, truly reflect non-representative be useful in forming proxy groups.181 analysis in pipeline ROE proceedings. data and should thus be removed from Similarly, although it opposes use of a Unlike in the public utility context, we the proxy group.175 The Commission high-end outlier test, INGAA states that are concerned that a natural break noted that the natural break analysis there is theoretical support for applying analysis could exacerbate the provides the Commission with a low-end outlier test.182 However, difficulties in forming pipeline proxy flexibility to reach a reasonable result INGAA opposes the proposed low-end groups by further reducing the number based on the particular array of ROEs outlier test’s 20% threshold and of potential proxy group members. 176 presented in a particular case. proposes two alternative approaches.183 Moreover, we believe that the natural 84. In Opinion No. 569–A, the break analysis is less useful in pipeline Commission denied requests for 3. Commission Determination proceedings. As explained in Opinion rehearing as to the low-end outlier test. 87. We decline to adopt specific No. 569, the purpose of the natural The Commission rejected challenges to outlier tests for use in determining the threshold based on 20% of the natural gas and oil pipeline ROEs. break analysis is to provide the CAPM risk premium and similarly Rather, we will continue to address Commission with flexibility to rejected claims that the low-end outlier outliers in pipeline proxy groups on a determine whether a proxy group test is inconsistent with Commission case-by-case basis in accordance with company ROE is truly an outlier or 187 precedent.177 our policy to remove ‘‘anomalous’’ or contains useful information. Because 85. Moreover, the Commission ‘‘illogical’’ cost-of-equity estimates that there are so few members of pipeline modified the high-end outlier test do not provide meaningful indicia of the proxy groups, the natural break analysis adopted in Opinion No. 569 to increase returns that a pipeline needs to attract is less likely to identify outliers as this the exclusion threshold to 200% of the capital from the market.184 typically involves examining the median result of all the potential proxy 88. We believe that rigid outlier distance between a given proxy group group members in the model in question screens are unnecessary for natural gas result and the next closest result, and before any high or low-end outlier test and oil pipelines for two reasons. First, comparing that to the dispersion of is applied. The Commission recognized as commenters observe, the other proxy group results.188 that a high-end outlier test with a bright- Commission’s use of the proxy group 91. We will continue to apply the line threshold could inappropriately median in setting pipeline ROEs general principle that ‘‘anomalous’’ or exclude rational ROEs that are not reduces the effect that low and high-end anomalous for the subject utility and ‘‘illogical’’ data should be excluded outliers may exert on the ROE result. from the proxy group. Using this found that increasing the threshold to When the Commission sets an ROE at approach, the Commission will retain 200% will reduce the risk that such the midpoint, as it does for RTO-wide flexibility to determine whether a given rational results are inappropriately ROEs in the public utility context, the 178 proxy group company is truly an outlier excluded. ROE is set at the average of the highest or whether it contains useful 2. NOI Comments and lowest ROEs of the proxy group members.185 The low and high-end information in light of the particular 86. Most commenters agree that the returns are therefore direct inputs into array of ROEs presented by the potential 189 outlier tests proposed in the Briefing the calculation of the midpoint the proxy group companies. Orders are not appropriate for natural 179 Commission uses to determine the ROE. D. Oil Pipeline Page 700s gas or oil pipelines. These In contrast, when the Commission uses commenters assert that outlier tests are the median to determine the ROE of a 92. In light of the impending five-year unnecessary because the Commission pipeline, the presence of an outlier has review of the oil pipeline index, we sets natural gas and oil pipeline ROEs a much smaller effect.186 encourage oil pipelines to file updated at the median of the proxy group results, 89. Second, as discussed above, the FERC Form No. 6, page 700 data for which reduces the distortion that high- pool of entities eligible for inclusion in end cost of equity estimates may cause 2019 reflecting the revised ROE natural gas and oil pipeline proxy methodology established herein. when the ROE is set at the midpoint of groups has declined in recent years and the proxy group results.180 CAPP, by Although the Commission will address remains small. Adopting rigid outlier this issue further in the five-year review, screens could further reduce the number 175 Id. P 396. Typically, this involves examining reflecting the revised methodology in the distance between that proxy group company of potential proxy group members and page 700 data for 2019 may help the and the next closest proxy group company and make it difficult to form pipeline proxy Commission better estimate industry- comparing that to the dispersion of other proxy groups with at least four or five wide cost changes for purposes of the group companies. As explained in Opinion No. 569, members. the natural break analysis may justify excluding five-year review. Pipelines that companies whose ROEs are a few basis points above previously filed Form No. 6 for 2019 the low-end outlier screen if their ROEs are far number of proxy group companies to an and choose to submit updated page 700 lower than other companies in the proxy group, and unacceptable level. Magellan Initial Comments at a similar analysis could apply with regard to high- 17–18. data should, in a footnote on the end outliers. Id. 181 CAPP Initial Comments at 21–22. updated page 700, either (a) confirm 176 Id. P 397. 182 INGAA Initial Comments at 69. that their previously filed Form No. 6 177 Opinion No. 569–A, 171 FERC ¶ 61,154 at P 183 Id. was based solely upon the DCF model 161. 184 E.g., Opinion No. 546, 154 FERC ¶ 61,070 at 178 Id. P 154. P 196. or (b) provide the real ROE and resulting 179 AOPL Initial Comments at 4, 15–17; INGAA 185 E.g., Midwest Indep. Transmission Sys. cost of service based solely upon the Initial Comments at 10–11, 65–69; Plains Comments Operator, Inc., 106 FERC ¶ 61,302, at PP 8–10 DCF model as it was applied to oil at 1–2, 5–6. (2004). pipelines prior to this Policy Statement. 180 AOPL Initial Comments at 16; INGAA Initial 186 Although the decision whether to include or Comments at 67; Plains Comments at 5–6; NGSA remove an outlier may affect which member of the Comments at 20. Magellan states that it may be proxy group is the median result, the outlier is not 187 Opinion No. 569, 169 FERC ¶ 61,129 at P 395. unreasonable to apply an outlier test to oil pipelines a direct part of the ROE calculation as it is when 188 Id. P 390. because removing outlying results could reduce the the Commission uses the midpoint. 189 Id. P 395.

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93. As discussed below, the 20, 2020, the date such filings were the accuracy of the burden estimates, Paperwork Reduction Act (PRA) 190 due.192 ways to enhance the quality, utility, and requires each federal agency to seek and III. Information Collection Statement clarity of the information to be collected obtain the Office of Management and or retained, and any suggested methods Budget’s (OMB) approval before 94. The PRA requires each federal for minimizing respondents’ burden, undertaking a collection of information agency to seek and obtain OMB including the use of automated directed to ten or more persons. approval before undertaking a collection information techniques. of information directed to ten or more Following OMB approval of this 194 persons.193 Upon approval of a 96. Burden Estimate: The voluntary information collection, the collection of information, OMB will estimated additional one-time burden Commission will issue a notice 195 assign an OMB Control Number and and cost for making a voluntary affording pipelines two weeks to file expiration date. The refiling of page 700 filing to update page 700 of the FERC updated page 700 data reflecting the of FERC Form No. 6 is being requested Form No. 6 consistent with this Policy 191 revised ROE methodology. Before on a voluntary basis. Statement is detailed in the following that time, pipelines that have not filed 95. The Commission is submitting table. The first row includes the Form No. 6 for 2019 (e.g., pipelines that this voluntary information collection industry cost of performing cost-of- have received an extension of the Form (the one-time re-filing of page 700 of equity studies to develop an updated No. 6 filing deadline) should file page FERC Form No. 6) to OMB for its review ROE estimate for the period ending 700 data consistent with their and approval under section 3507(d) of December 31, 2019. The second row previously-granted extensions and such the PRA. The Commission solicits shows the cost of reflecting the updated filings should be based upon the DCF comments on the Commission’s need for ROE estimates and revised Annual Cost model, which was the Commission’s oil this information, whether the of Service on page 700 of the FERC pipeline ROE methodology as of April information will have practical utility, Form No. 6.

ESTIMATED ANNUAL CHANGES TO BURDEN DUE TO DOCKET NO. PL19–4 196 [Figures may be rounded]

Annual Total annual Number number of Total number Average burden burden hours & Cost per of potential responses per of responses hours & cost ($) total annual cost respondent ($) respondents respondent per response ($)

(1) (2) (1) * (2) = (3) (4) (3) * (4) = (5) (5) ÷ (1) = (6)

Updated ROE Study ...... 244 1 244 187.5 hrs.; 45,750 hrs.; $15,000 $15,000. $3,660,000. Refile FERC Form No. 6, page 700 244 1 244 0.5 hrs.; $40 ...... 122 hrs.; $9,760 40

Total Changes, Due to PL19–4 244 1 244 ...... $3,669,760 ...... 15,040

97. This additional one-time burden is that calculates pipeline cost changes on email: [email protected] and expected to be imposed in Year 1. a per barrel-mile basis based upon FERC phone: (202) 502–8663]. 98. Title: FERC Form No. 6, Annual Form No. 6, page 700 data.199 100. Please send comments Report of Oil Pipeline Companies. Depending upon the record developed concerning the collection of information Action: Revision to FERC Form No. 6, in the 2020 five-year review of the oil and the associated burden estimates to: page 700. pipeline index, the Commission will Office of Information and Regulatory OMB Control No.: 1902–0022. consider using the updated FERC Form Respondents: Oil pipelines. Affairs, Office of Management and No. 6, page 700 data for 2019 in that Frequency of Responses: One time. Budget [Attention: Federal Energy Necessity of the Information: As proceeding. Regulatory Commission Desk Officer]. established in Order No. 561,197 oil 99. Interested persons may obtain Due to security concerns, comments pipelines may increase their existing information on the reporting should be sent directly to transportation rates on an annual basis requirements by contacting the www.reginfo.gov/public/do/PRAMain. using an industry-wide index. The following: Federal Energy Regulatory Comments submitted to OMB should be Commission reviews the index level Commission, 888 First Street NE, sent within 30 days of publication of every five years.198 In the five-year Washington, DC 20426 [Attention: Ellen this notice in the Federal Register and review, the Commission establishes the Brown, Office of the Executive Director, refer to FERC Form No. 6 and OMB index level based upon a methodology Control No. 1902–0022.

190 44 U.S.C. 3501–21. 194 ‘‘Burden’’ is the total time, effort, or financial 196 We have conservatively assumed a 100% 191 Following OMB approval of this information resources expended by persons to generate, voluntary response rate. collection, the Commission will issue a notice maintain, retain, or disclose or provide information 197 Revisions to Oil Pipeline Regulations Pursuant to or for a Federal agency. For further explanation specifying the date on which any updated page 700 to the Energy Policy Act of 1992, Order No. 561, of what is included in the information collection should be filed. burden, refer to 5 CFR 1320.3. FERC Stats. & Regs. ¶ 30,985 (1993), order on reh’g, 192 Upon OMB approval, these pipelines will 195 Commission staff estimates that the industry’s Order No. 561–A, FERC Stats. & Regs. ¶ 31,000 have the opportunity to file updated page 700 data skill set and cost (for wages and benefits) for (1994), aff’d, Ass’n of Oil Pipelines v. FERC, 83 F.3d reflecting the Commission’s revised oil pipeline completing and filing FERC Form No. 6 is 1424 (D.C. Cir. 1996). ROE methodology. comparable to the Commission’s skill set and 198 Id. at 30,941. 193 OMB’s regulations requiring approval of average cost. The FERC 2019 average salary plus 199 Five-Year Review of the Oil Pipeline Index, benefits for one FERC full-time equivalent (FTE) is certain collections of information are at 5 CFR 1320. 153 FERC ¶ 61,312, at PP 5, 12 (2015). $167,091/year or $80.00/hour.

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IV. Document Availability facilities for the exportation of liquefied Schedule for Environmental Review is 101. In addition to publishing the full natural gas and granting Golden Pass issued, it will indicate, among other text of this document in the Federal Pipeline authority to expand its existing milestones, the anticipated date for the Register, the Commission provides all pipeline system (Compression Commission staff’s issuance of the EA interested persons an opportunity to Relocation and Modification Project). for this proposal. The filing of the EA view and/or print the contents of this The Compression Relocation and in the Commission’s public record for document via the internet through the Modification Project consists of the this proceeding or the issuance of a Commission’s Home Page (http:// following: (1) Relocation of an Notice of Schedule for Environmental www.ferc.gov)). At this time, the authorized compressor station from Review will serve to notify federal and Commission has suspended access to Milepost 66 to Milepost 69 on the state agencies of the timing for the the Commission’s Public Reference Golden Pass Pipeline system; (2) completion of all necessary reviews, and additional compression at the relocated the subsequent need to complete all Room, due to the proclamation compressor station, (3) add a meter federal authorizations within 90 days of declaring a National Emergency station near Milepost 69 to support an the date of issuance of the EA. concerning the Novel Coronavirus Interconnect with the proposed There are two ways to become Disease (COVID–19), issued by the interstate pipeline to be constructed and involved in the Commission’s review of President on March 13, 2020. this project. First, any person wishing to 102. From the Commission’s Home operated by Enable Gulf Run obtain legal status by becoming a party Page on the internet, this information is Transmission, LLC, (4) remove any bi- directional piping modification to the to the proceedings for this project available on eLibrary. The full text of Interconnect for Tennessee Gas Pipeline should, on or before the comment date this document is available on eLibrary Company, L.L.C. (Tennessee Gas), (5) stated below file with the Federal in PDF and Microsoft Word format for relocate looping facilities to reflect the Energy Regulatory Commission, 888 viewing, printing, and/or downloading. relocation of the compressor station and First Street NE, Washington, DC 20426, To access this document in eLibrary, the cancellation of Tennessee Gas as an a motion to intervene in accordance type the docket number excluding the input source to Golden Pass Pipeline, with the requirements of the last three digits of this document in the and (6) minor modifications to existing Commission’s Rules of Practice and docket number field. interconnections at Milepost 66 and Procedure (18 CFR 385.214 or 385.211) 103. User assistance is available for Milepost 68, all as more fully described and the Regulations under the NGA (18 eLibrary and the Commission’s website in their application. CFR 157.10). A person obtaining party during normal business hours from the Any questions regarding this status will be placed on the service list Commission’s Online Support at (202) application should be addressed to maintained by the Secretary of the 502–6652 (toll free at 1–866–208–3676) Blaine Yamagata, Vice President and Commission and will receive copies of or email at [email protected], General Counsel, Golden Pass LNG, 811 all documents filed by the applicant and or the Public Reference Room at (202) Louisiana Street, Suite 1500, Houston, by all other parties. A party must submit 502–8371, TTY (202) 502–8659. Email Texas 77002; or to Kevin M. Sweeney, 3 copies of filings made in the the Public Reference Room at Law Office of Kevin M. Sweeney, 1625 proceeding with the Commission and [email protected]. K Street NW, Washington, DC 20006, by must provide a copy to the applicant V. Effective Date telephone at (202) 609–7709. and to every other party. Only parties to In addition to publishing the full text the proceeding can ask for court review 104. This Policy Statement becomes of this document in the Federal of Commission orders in the proceeding. effective May 27, 2020. Register, the Commission provides all However, a person does not have to By the Commission. interested persons an opportunity to intervene in order to have comments Issued: May 21, 2020. view and/or print the contents of this considered. The second way to Nathaniel J. Davis, Sr., document via the internet through the participate is by filing with the Deputy Secretary. Commission’s Home Page (http:// Secretary of the Commission, as soon as [FR Doc. 2020–11406 Filed 5–26–20; 8:45 am] ferc.gov) using the eLibrary link. Enter possible, an original and two copies of the docket number excluding the last comments in support of or in opposition BILLING CODE 6717–01–P three digits in the docket number field to this project. The Commission will to access the document. At this time, the consider these comments in DEPARTMENT OF ENERGY Commission has suspended access to determining the appropriate action to be the Commission’s Public Reference taken, but the filing of a comment alone Federal Energy Regulatory Room, due to the proclamation will not serve to make the filer a party Commission declaring a National Emergency to the proceeding. The Commission’s concerning the Novel Coronavirus rules require that persons filing [Docket Nos. CP20–454–000; CP14–518– Disease (COVID–19), issued by the comments in opposition to the project 000] President on March 13, 2020. For provide copies of their protests only to Golden Pass Pipeline LLC; Notice of assistance, contact FERC at the party or parties directly involved in Application [email protected] or call the protest. toll-free, (886) 208–3676 or TYY, (202) Persons who wish to comment only Take notice that on May 13, 2020, 502–8659. on the environmental review of this Golden Pass Pipeline LLC (Golden Pass Pursuant to section 157.9 of the project should submit an original and Pipeline), 811 Louisiana Street, Commission’s rules, 18 CFR 157.9, two copies of their comments to the Houston, Texas 77002, filed an within 90 days of this Notice the Secretary of the Commission. application pursuant to section 7 of the Commission staff will either: Complete Environmental commenters will be Natural Gas Act and part 157 of the its environmental assessment (EA) and placed on the Commission’s Commission’s regulations for authority place it into the Commission’s public environmental mailing list and will be to amend its order issued on December record (eLibrary) for this proceeding; or notified of any meetings associated with 21, 2016, granting Golden Pass LNG issue a Notice of Schedule for the Commission’s environmental review authority to site, construct and operate Environmental Review. If a Notice of process. Environmental commenters

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will not be required to serve copies of Docket Numbers: RP20–879–000. • Federal eRulemaking Portal: http:// filed documents on all other parties. Applicants: Antero Resources www.regulations.gov. Follow the online However, the non-party commenters Corporation, MU Marketing LLC. instructions for submitting comments. will not receive copies of all documents Description: Joint Petition for Do not submit electronically any filed by other parties or issued by the Temporary Waivers of Capacity Release information you consider to be Commission and will not have the right Regulations, et al. of Antero Resources Confidential Business Information (CBI) to seek court review of the Corporation, et al. under RP20–879. or other information whose disclosure is Commission’s final order. Filed Date: 5/19/20. restricted by statute. As of the February 27, 2018 date of Accession Number: 20200519–5169. • Mail: OPP Docket, Environmental the Commission’s order in Docket No. Comments Due: 5 p.m. ET 6/1/20. Protection Agency Docket Center (EPA/ CP16–4–001, the Commission will The filings are accessible in the DC), (28221T), 1200 Pennsylvania Ave. apply its revised practice concerning Commission’s eLibrary system by NW, Washington, DC 20460–0001. out-of-time motions to intervene in any clicking on the links or querying the • Hand Delivery: To make special new Natural Gas Act section 3 or section docket number. 1 arrangements for hand delivery or 7 proceeding. Persons desiring to Any person desiring to intervene or become a party to a certificate protest in any of the above proceedings delivery of boxed information, please proceeding are to intervene in a timely must file in accordance with Rules 211 follow the instructions at https:// manner. If seeking to intervene out-of- and 214 of the Commission’s www.epa.gov/dockets/where-send- time, the movant is required to show Regulations (18 CFR 385.211 and comments-epa-dockets. good cause why the time limitation 385.214) on or before 5:00 p.m. Eastern Please note that due to the public should be waived, and should provide time on the specified date(s). Protests health emergency, the EPA Docket justification by reference to factors set may be considered, but intervention is Center (EPA/DC) and Reading Room forth in Rule 214(d)(1) of the necessary to become a party to the was closed to public visitors on March Commission’s Rules and Regulations.2 proceeding. 31, 2020. Our EPA/DC staff will The Commission strongly encourages eFiling is encouraged. More detailed continue to provide customer service electronic filings of comments, protests information relating to filing via email, phone, and webform. For and interventions in lieu of paper using requirements, interventions, protests, further information on EPA/DC services, the eFiling link at http://www.ferc.gov. service, and qualifying facilities filings docket contact information and the Persons unable to file electronically can be found at: http://www.ferc.gov/ current status of the EPA/DC and should submit an original and 3 copies docs-filing/efiling/filing-req.pdf. For Reading Room, please visit https:// of the protest or intervention to the other information, call (866) 208–3676 www.epa.gov/dockets. Federal Energy Regulatory Commission, (toll free). For TTY, call (202) 502–8659. 888 First Street NE, Washington, DC FOR FURTHER INFORMATION CONTACT: 20426. Dated: May 20, 2020. Michael Goodis, Registration Division Comment Date: 5:00 p.m. Eastern Nathaniel J. Davis, Sr., (7505P), main telephone number: (703) Standard Time on June 10, 2020. Deputy Secretary. 305–7090, email address: Dated: May 20, 2020. [FR Doc. 2020–11329 Filed 5–26–20; 8:45 am] [email protected]; The mailing address for each contact person is: Nathaniel J. Davis, Sr., BILLING CODE 6717–01–P Office of Pesticide Programs, Deputy Secretary. Environmental Protection Agency, 1200 [FR Doc. 2020–11328 Filed 5–26–20; 8:45 am] ENVIRONMENTAL PROTECTION Pennsylvania Ave. NW, Washington, DC BILLING CODE 6717–01–P AGENCY 20460–0001. As part of the mailing address, include the contact person’s [EPA–HQ–OPP–2020–0049; FRL–10009–85] name, division, and mail code. The DEPARTMENT OF ENERGY Pesticide Product Registration; division to contact is listed at the end Federal Energy Regulatory Receipt of Applications for New Active of each pesticide petition summary. Commission Ingredients SUPPLEMENTARY INFORMATION: Combined Notice of Filings #2 AGENCY: Environmental Protection I. General Information Agency (EPA). Take notice that the Commission has A. Does this action apply to me? ACTION: Notice. received the following Natural Gas You may be potentially affected by Pipeline Rate and Refund Report filings: SUMMARY: EPA has received applications this action if you are an agricultural Docket Numbers: RP20–876–000. to register pesticide products containing producer, food manufacturer, or Applicants: Shell Energy North active ingredients not included in any America (US), L.P., National Fuel Gas pesticide manufacturer. The following currently registered pesticide products. list of North American Industrial Company. Pursuant to the Federal Insecticide, Description: Joint Petition for Classification System (NAICS) codes is Fungicide, and Rodenticide Act not intended to be exhaustive, but rather Temporary Waivers of Capacity Release (FIFRA), EPA is hereby providing notice Regulations and Policies, et al. of Shell provides a guide to help readers of receipt and opportunity to comment determine whether this document Energy North America (US), L.P., et al. on these applications. under RP20–876. applies to them. Potentially affected DATES: Comments must be received on entities may include: Filed Date: 5/18/20. or before June 26, 2020. Accession Number: 20200518–5198. • Crop production (NAICS code 111). ADDRESSES: Submit your comments, Comments Due: 5 p.m. ET 6/1/20. • identified by docket identification (ID) Animal production (NAICS code 112). 1 Tennessee Gas Pipeline Company, L.L.C., 162 number and the File Symbol of interest FERC ¶ 61,167 at ¶ 50 (2018). as shown in the body of this document, • Food manufacturing (NAICS code 2 18 CFR 385.214(d)(1). by one of the following methods: 311).

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B. What should I consider as I prepare Dated: May 11, 2020. Office of Pollution Prevention and my comments for EPA? Delores Barber, Toxics Docket (OPPT Docket), Director, Information Technology and Environmental Protection Agency 1. Submitting CBI. Do not submit this Resources Management Division, Office of Docket Center (EPA/DC), West William information to EPA through Pesticide Programs. Jefferson Clinton Bldg., Rm. 3334, 1301 regulations.gov or email. Clearly mark [FR Doc. 2020–11258 Filed 5–26–20; 8:45 am] Constitution Ave. NW, Washington, DC. the part or all of the information that BILLING CODE 6560–50–P The Public Reading Room is open from you claim to be CBI. For CBI 8:30 a.m. to 4:30 p.m., Monday through information in a disk or CD–ROM that Friday, excluding legal holidays. The you mail to EPA, mark the outside of the ENVIRONMENTAL PROTECTION telephone number for the Public disk or CD–ROM as CBI and then AGENCY Reading Room is (202) 566–1744, and identify electronically within the disk or [EPA–HQ–OPPT–2003–0004; FRL–10008– the telephone number for the OPPT CD–ROM the specific information that 43] Docket is (202) 566–0280. Please review is claimed as CBI. In addition to one the visitor instructions and additional complete version of the comment that Access to Confidential Business information about the docket available includes information claimed as CBI, a Information by Access Interpreting, at http://www.epa.gov/dockets. copy of the comment that does not Inc. contain the information claimed as CBI II. What action is the Agency taking? AGENCY: Environmental Protection must be submitted for inclusion in the Agency (EPA) public docket. Information so marked Under GSA/FEDSIM solicitation will not be disclosed except in ACTION: Notice. number GS–10F–0372X, task order number 68HE0H18A0005/P00003, accordance with procedures set forth in SUMMARY: EPA has authorized its 40 CFR part 2. contractor Access Interpreting, Inc. of contractor, Access Interpreting, Inc. of 1100 H Street NW, Suite 440, 2. Tips for preparing your comments. Washington, DC, to access information Washington, DC, is assisting the Office When preparing and submitting your which has been submitted to EPA under of Pollution Prevention and Toxics comments, see the commenting tips at all sections of the Toxic Substances (OPPT) by attending meetings Control Act (TSCA). Some of the https://www.epa.gov/dockets/ discussing TSCA CBI and interpret for information may be claimed or commenting-epa-dockets. staff requiring American Sign Language determined to be Confidential Business (ASL) interpretation. The contractors are II. Registration Applications Information (CBI). American Sign Language interpreters. EPA has received applications to DATES: Access to the confidential data will occur no sooner than June 3, 2020. In accordance with 40 CFR 2.306(j), register pesticide products containing EPA has determined that under GSA/ active ingredients not included in any FOR FURTHER INFORMATION CONTACT: For technical information contact: Scott FEDSIM solicitation number GS–10F– currently registered pesticide products. 0372X, task order number Pursuant to the provisions of FIFRA Sherlock, Environmental Assistance Division (7408M), Office of Pollution 68HE0H18A0005/P00003, Access section 3(c)(4) (7 U.S.C. 136a(c)(4)), EPA Interpreting, Inc. required access to CBI is hereby providing notice of receipt and Prevention and Toxics, Environmental Protection Agency, 1200 Pennsylvania submitted to EPA under all sections of opportunity to comment on these TSCA to perform successfully the duties applications. Notice of receipt of these Ave. NW, Washington, DC 20460–0001; telephone number: (202) 564–8257; specified under the contract. Access applications does not imply a decision Interpreting, Inc. personnel were given by the Agency on these applications. email address: [email protected]. For general information contact: The access to information submitted to EPA For actions being evaluated under EPA’s TSCA-Hotline, ABVI-Goodwill, 422 under all sections of TSCA. Some of the public participation process for South Clinton Ave., Rochester, NY information may be claimed or registration actions, there will be an 14620; telephone number: (202) 554– determined to be CBI. additional opportunity for public 1404; email address: TSCA-Hotline@ comment on the proposed decisions. EPA is issuing this notice to inform epa.gov. Please see EPA’s public participation all submitters of information under all website for additional information on SUPPLEMENTARY INFORMATION: sections of TSCA that EPA has provided Access Interpreting, Inc. access to these this process (http://www2.epa.gov/ I. General Information pesticide-registration/public- CBI materials on a need-to-know basis participation-process-registration- A. Does this action apply to me? only. All access to TSCA CBI under this actions). This action is directed to the public contract is taking place at EPA in general. This action may, however, be Headquarters in accordance with EPA’s Notice of Receipt—New Active of interest to all who manufacture, TSCA CBI Protection Manual. Ingredients process, or distribute industrial Access to TSCA data, including CBI, EPA file symbols: 8033–RUN and chemicals. Since other entities may also will continue until September 30, 2023. 8033–RGO. Docket ID number: EPA– be interested, the Agency has not If the contract is extended, this access HQ–OPP–2020–0225. Applicant: attempted to describe all the specific will also continue for the duration of the Nippon Soda Co., Ltd., Shin-Ohtemachi entities that may be affected by this extended contract without further Bldg. 2–1, 2-Chome Ohtemachi action. notice. Chiyoda-ku, Tokyo 100–8165, Japan. B. How can I get copies of this document Access Interpreting, Inc. personnel Active ingredient: Ipflufenoquin. and other related information? have signed nondisclosure agreements Product type: Fungicide. Proposed The docket for this action, identified and were briefed on appropriate use(s): Almond and Pome Fruit (Crop by docket identification (ID) number security procedures before they were Group 11–10). (RD). EPA–HQ–OPPT–2003–0004, is available permitted access to TSCA CBI. Authority: 7 U.S.C. 136 et seq. at http://www.regulations.gov or at the Authority: 15 U.S.C. 2601 et seq.

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Dated: May 19, 2020. proposed information collection within facility. This form is also known as the Pamela Myrick, 30 days of publication of this notice to ‘‘Part A’’ form. Director, Information Management Division, www.reginfo.gov/public/do/PRAMain. Form Numbers: EPA form numbers Office of Pollution Prevention and Toxics. Find this particular information 8700–12, 8700–13A/B, and 8700–23. [FR Doc. 2020–11314 Filed 5–26–20; 8:45 am] collection by selecting ‘‘Currently under Respondents/affected entities: BILLING CODE 6560–50–P 30-day Review—Open for Public Business or other for-profit as well as Comments’’ or by using the search State, Local, or Tribal governments. function. Respondent’s obligation to respond: Mandatory (RCRA Sections 3002, 3304, ENVIRONMENTAL PROTECTION FOR FURTHER INFORMATION CONTACT: AGENCY Peggy Vyas, Environmental Protection 3005, 3010). Estimated number of respondents: Agency, 1200 Pennsylvania Ave. NW, [EPA–HQ–OLEM–2019–0558, FRL–20005– 3,192,310 per year. Washington, DC 20460; telephone 94–OMS] Frequency of response: Biennially and number: 703–308–5477; fax number: on occasion. Information Collection Request 703–308–8433; email address: Total estimated burden: 809,382 Submitted to OMB for Review and [email protected]. hours per year. Burden is defined at 5 Approval; Comment Request; RCRA SUPPLEMENTARY INFORMATION: CFR 1320.03(b). Subtitle C Reporting Instructions and Supporting documents, which explain Total estimated cost: $35,658,164 (per Forms (Renewal) in detail the information that the EPA year), includes $342,016 annualized will be collecting, are available in the AGENCY: Environmental Protection capital or operation & maintenance Agency (EPA). public docket for this ICR. The docket costs. can be viewed online at ACTION: Notice. Changes in the Estimates: There is an www.regulations.gov or in person at the increase of 161,956 hours in the total SUMMARY: The Environmental Protection EPA Docket Center, WJC West, Room estimated respondent burden compared Agency (EPA) has submitted an 3334, 1301 Constitution Ave. NW, with the ICR currently approved by information collection request (ICR), Washington, DC. The telephone number OMB. This increase is due to an RCRA Subtitle C Reporting Instructions for the Docket Center is 202–566–1744. increase in the universe of facilities and Forms (EPA ICR Number 0976.19, For additional information about EPA’s subject to requirements. public docket, visit http://www.epa.gov/ OMB Control Number 2050–0024) to the Courtney Kerwin, Office of Management and Budget dockets. Director, Regulatory Support Division. (OMB) for review and approval in Abstract: Section 3002 of RCRA accordance with the Paperwork requires hazardous waste generators to [FR Doc. 2020–11357 Filed 5–26–20; 8:45 am] Reduction Act. This is a proposed report, at least every 2 years, the BILLING CODE 6560–50–P extension of the ICR, which is currently quantity and nature of hazardous waste approved through May 30, 2020. Public generated and managed during that ENVIRONMENTAL PROTECTION comments were previously requested reporting cycle. Section 3004 requires AGENCY via the Federal Register on October 7, treatment, storage, and disposal facilities (TSDFs) to report any waste 2019 during a 60-day comment period. [EPA–HQ–OPP–2020–0264; FRL–10009–75] This notice allows for an additional 30 received. This is mandatory reporting. days for public comments. A fuller The information is collected via the Dinotefuran; Receipt of Applications description of the ICR is given below, Hazardous Waste Report (EPA Form for Emergency Exemptions, including its estimated burden and cost 8700–13 A/B). This form is also known Solicitation of Public Comment to the public. An agency may not as the ‘‘Biennial Report’’ form. Section 3010 of RCRA requires any AGENCY: Environmental Protection conduct or sponsor and a person is not person who generates or transports Agency (EPA). required to respond to a collection of regulated waste or who owns or ACTION: Notice. information unless it displays a operates a facility for the treatment, currently valid OMB control number. storage, or disposal of regulated waste to SUMMARY: EPA has received specific DATES: Additional comments may be notify the EPA of their activities, exemption requests from the Maryland submitted on or before June 26, 2020. including the location and general and Pennsylvania Departments of ADDRESSES: Submit your comments to description of activities and the Agriculture, and the Virginia EPA, referencing Docket ID No. EPA– regulated wastes handled. The entity is Department of Agriculture and HQ–OLEM–2019–0558, online using then issued an EPA Identification Consumer Services to use the pesticide www.regulations.gov (our preferred number. Entities use the Notification dinotefuran (CAS No. 165252–70–0) to method), by email to rcra-docket@ Form (EPA Form 8700–12) to notify treat up to 3,730; 24,973; and 29,000 epa.gov, or by mail to: RCRA Docket, EPA of their hazardous waste activities. acres, respectively, of pome and stone Mail Code 28221T, 1200 Pennsylvania This form is also known as the fruits to control the brown marmorated Ave. NW, Washington, DC 20460. EPA’s ‘‘Notification’’ form. stinkbug. The Applicants propose uses policy is that all comments received Section 3005 of RCRA requires TSDFs which are supported by the will be included in the public docket to obtain a permit. To obtain the permit, Interregional Research Project Number 4 without change including any personal the TSDF must submit an application (IR–4) program and have been requested information provided, unless the describing the facility’s operation. The in 5 or more previous years, and comment includes profanity, threats, RCRA Hazardous Waste Part A Permit petitions for tolerances have not yet information claimed to be Confidential Application form (EPA Form 8700–23) been submitted to the Agency. EPA is Business Information (CBI), or other defines the processes to be used for soliciting public comment before information whose disclosure is treatment, storage, and disposal of making the decision whether or not to restricted by statute. hazardous wastes; the design capacity of grant the exemptions. Submit written comments and such processes; and the specific DATES: Comments must be received on recommendations to OMB for the hazardous wastes to be handled at the or before June 11, 2020.

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ADDRESSES: Submit your comments, CD–ROM the specific information that 0.608 lb.) of dinotefuran per acre, on up identified by docket identification (ID) is claimed as CBI. In addition to one to 57,703 acres of pome fruits and stone number EPA–HQ–OPP–2020–0264, by complete version of the comment that fruits grown in Maryland, Pennsylvania, one of the following methods: includes information claimed as CBI, a and Virginia from May 15 to October 15, • Federal eRulemaking Portal: http:// copy of the comment that does not 2020. A total of 35,084 lbs. of www.regulations.gov. Follow the online contain the information claimed as CBI dinotefuran could be used (maximum instructions for submitting comments. must be submitted for inclusion in the acreage at highest rate). Do not submit electronically any public docket. Information so marked This notice does not constitute a information you consider to be will not be disclosed except in decision by EPA on the applications Confidential Business Information (CBI) accordance with procedures set forth in themselves. The regulations governing or other information whose disclosure is 40 CFR part 2. FIFRA section 18 require publication of restricted by statute. 2. Tips for preparing your comments. a notice of receipt of an application for • Mail: OPP Docket, Environmental When preparing and submitting your a specific exemption proposing a use Protection Agency Docket Center (EPA/ comments, see the commenting tips at which is supported by the IR–4 program DC), (28221T), 1200 Pennsylvania Ave. http://www.epa.gov/dockets/ and has been requested in 5 or more NW, Washington, DC 20460–0001. comments.html. previous years, and a petition for • Hand Delivery: To make special 3. Environmental justice. EPA seeks to tolerance has not yet been submitted to arrangements for hand delivery or achieve environmental justice, the fair the Agency. The notice provides an delivery of boxed information, please treatment and meaningful involvement opportunity for public comment on the follow the instructions at http:// of any group, including minority and/or applications. www.epa.gov/dockets/contacts.html. low-income populations, in the The Agency will review and consider Additional instructions on development, implementation, and all comments received during the commenting or visiting the docket, enforcement of environmental laws, comment period in determining along with more information about regulations, and policies. To help whether to issue the specific dockets generally, is available at http:// address potential environmental justice exemptions requested by the Maryland www.epa.gov/dockets. issues, the Agency seeks information on and Pennsylvania Departments of FOR FURTHER INFORMATION CONTACT: any groups or segments of the Agriculture, and the Virginia Michael Goodis, Registration Division population who, as a result of their Department of Agriculture and (7505P), Office of Pesticide Programs, location, cultural practices, or other Consumer Services, as well as any Environmental Protection Agency, 1200 factors, may have atypical or subsequent specific exemption Pennsylvania Ave. NW, Washington, DC disproportionately high and adverse applications submitted by other state 20460–0001; main telephone number: human health impacts or environmental lead agencies. effects from exposure to the pesticide (703) 305–7090; email address: Authority: 7 U.S.C. 136 et seq. [email protected]. discussed in this document, compared to the general population. Dated: May 13, 2020. SUPPLEMENTARY INFORMATION: Michael Goodis, II. What action is the Agency taking? I. General Information Director, Registration Division, Office of Under section 18 of the Federal Pesticide Programs. A. Does this action apply to me? Insecticide, Fungicide, and Rodenticide [FR Doc. 2020–11257 Filed 5–26–20; 8:45 am] You may be potentially affected by Act (FIFRA) (7 U.S.C. 136p), at the BILLING CODE 6560–50–P this action if you are an agricultural discretion of the EPA Administrator, a producer, food manufacturer, or Federal or State agency may be pesticide manufacturer. The following exempted from any provision of FIFRA FEDERAL HOUSING FINANCE list of North American Industrial if the EPA Administrator determines AGENCY Classification System (NAICS) codes is that emergency conditions exist which not intended to be exhaustive, but rather require the exemption. The Maryland [No. 2020–N–12] Department of Agriculture (MDA), provides a guide to help readers Proposed Collection; Comment Pennsylvania Department of Agriculture determine whether this document Request applies to them. Potentially affected (PDA), and Virginia Department of entities may include: Agriculture and Consumer Services AGENCY: Federal Housing Finance • Crop production (NAICS code 111). (VDACS) have requested the EPA Agency. • Animal production (NAICS code Administrator to issue specific ACTION: Contractor Workforce Inclusion 112). exemptions for the uses of dinotefuran Good Faith Efforts—60-day Notice of • Food manufacturing (NAICS code on pome and stone fruits to control the submission of information collection for 311). brown marmorated stinkbug. approval from Office of Management • Pesticide manufacturing (NAICS Information in accordance with 40 CFR and Budget. code 32532). part 166 was submitted as part of the requests. SUMMARY: In accordance with the B. What should I consider as I prepare As part of their requests, the requirements of the Paperwork my comments for EPA? Applicants assert that the rapid spread Reduction Act of 1995 (PRA), the 1. Submitting CBI. Do not submit this of large outbreaks of the brown Federal Housing Finance Agency (FHFA information to EPA through marmorated stinkbug (an invasive or the Agency) is seeking public www.regulations.gov or email. Clearly species) resulted in an urgent and non- comments concerning an information mark the part or all of the information routine pest control situation that is collection known as ‘‘Contractor that you claim to be CBI. For CBI expected to cause significant economic Workforce Inclusion Good Faith information in a disk or CD–ROM that losses without the requested uses. Efforts,’’ which has been assigned you mail to EPA, mark the outside of the The Applicants propose to make no control number 2590–0016 by the Office disk or CD–ROM as CBI and then more than two applications at a rate of of Management and Budget (OMB). identify electronically within the disk or 0.203 to 0.304 lb. (maximum total of FHFA intends to submit the information

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collection to OMB for review and and business activities.1 Section MWI Clause requires a contractor to approval of a three-year extension of the 342(c)(1) requires the OMWI Director at confirm its commitment to equal control number, which is due to expire each agency to develop and implement opportunity in employment and on July 31, 2020. standards and procedures to ensure, to contracting, and to implement that DATES: Interested persons may submit the maximum extent possible, the fair commitment by ensuring, to the comments on or before July 27, 2020. inclusion and utilization of minorities, maximum extent possible consistent women, and minority- and women- with applicable law, the fair inclusion ADDRESSES: Submit comments to FHFA, owned businesses in all business and of minorities and women in its identified by ‘‘Proposed Collection; activities of the agency at all levels, workforce. The MWI Clause also Comment Request: ‘Contractor including in procurement, insurance, requires that a contractor include the Workforce Inclusion Good Faith Efforts, and all types of contracts. Section substance of the MWI Clause in all (No. 2020–N–12)’ ’’ by any of the 342(c)(2) requires that the OMWI subcontracts with a dollar value greater following methods: Director include in the agency’s than $150,000 awarded under the • Agency Website: www.fhfa.gov/ procedures for evaluating contract contract. (Hereinafter, contractors that open-for-comment-or-input. proposals and hiring service providers a are subject to the MWI Clause and • Federal eRulemaking Portal: http:// component that gives consideration to subcontractors that are subject to a www.regulations.gov. Follow the the diversity of an applicant, to the similar clause required to be included in instructions for submitting comments. If extent consistent with applicable law. a subcontract are referred to as you submit your comment to the That statutory provision also requires ‘‘covered’’ contractors and Federal eRulemaking Portal, please also that each agency’s procedures include a subcontractors.) send it by email to FHFA at written statement that a contractor shall Finally, the MWI Clause requires a [email protected] to ensure ensure, to the maximum extent possible, contractor to provide, when requested timely receipt by the agency. the fair inclusion of women and by FHFA, documentation demonstrating • Mail/Hand Delivery: Federal minorities in the workforce of the that the contractor, as well as any Housing Finance Agency, Eighth Floor, contractor and, as applicable, covered subcontractor has made a good 400 Seventh Street SW, Washington, DC subcontractors. faith effort to ensure the fair inclusion 20219, ATTENTION: Proposed Further, section 342(c)(3)(A) of the of minorities and women in its Collection; Comment Request: Dodd-Frank Act requires that each workforce. The MWI Clause provides ‘‘Contractor Workforce Inclusion Good agency’s standards and procedures that such documentation may include, Faith Efforts, (No. 2020–N–12).’’ include a procedure for determining but is not limited to: (1) The contractor’s whether an agency contractor or total number of employees, and the We will post all public comments we subcontractor has failed to make a good number of minority and women receive without change, including any faith effort to include minorities and employees, by race, ethnicity, and personal information you provide, such women in its workforce. If the OMWI gender (e.g., an EEO–1 Employer as your name and address, email Director determines that a contractor or Information Report (Form EEO–1)); (2) a address, and telephone number, on the subcontractor has failed to make such a list of the subcontracts the contractor FHFA website at http://www.fhfa.gov. In good faith effort, section 342(c)(3)(B)(i) awarded including the dollar amount, addition, copies of all comments provides that the OMWI Director shall date of the award, and the ownership received will be available for recommend to the agency administrator status of the subcontractor by race, examination by the public through the that the contract be terminated. Section ethnicity, and/or gender; (3) information electronic comment docket for this PRA 342(c)(3)(B)(ii) provides that, upon similar to that required under the first Notice also located on the FHFA receipt of such a recommendation, the item above for each subcontractor; and website. agency administrator may either (4) the contractor’s plan to ensure that FOR FURTHER INFORMATION CONTACT: terminate the contract, make a referral to minorities and women have appropriate Kenneth Hunter, Office of Minority and the Office of Federal Contract opportunities to enter and advance Women Inclusion, Kenneth.Hunter@ Compliance Programs (OFCCP) of the within its workforce, including outreach fhfa.gov, (202) 649–3127; Karen Department of Labor, or take other efforts (hereinafter, a ‘‘workforce Lambert, Associate General Counsel, appropriate action. inclusion plan’’). A request for [email protected], (202) 649– As a means of implementing the documentation by FHFA pursuant to 3094; or Angela Supervielle, Counsel, requirements of section 342(c) of the this provision of the MWI Clause [email protected], (202) 649– Dodd-Frank Act, FHFA developed a constitutes a ‘‘collection of information’’ 3973 (these are not toll-free numbers); Minority and Women Inclusion Clause within the meaning of the PRA. Federal Housing Finance Agency, 400 (MWI Clause) that it includes in Agency On March 9, 2018, FHFA finalized its Seventh Street SW, Washington, DC contracts with a dollar value greater ‘‘Policy Establishing Procedures to 20219. The Telecommunications Device than the ‘‘simplified acquisition Determine Compliance by Contractors for the Deaf is (800) 877–8339. threshold’’ established in the Federal with the Minority and Women Inclusion 2 Contract Clause’’ (Good Faith Efforts SUPPLEMENTARY INFORMATION: Acquisition Regulation (FAR). The Policy (GFEP)), which establishes a A. Background 1 12 U.S.C. 5452. process to determine whether covered 2 See FAR 2.101. The FAR appears at 48 CFR contractors or subcontractors are making Section 342(a)(1)(A) of the Dodd- chapter 1. Although the FAR has not yet been good faith efforts to ensure the fair Frank Wall Street Reform and Consumer updated, Congress increased the simplified acquisition threshold to $250,000 in 2017. See inclusion of minorities and women in Protection Act of 2010 (the Dodd-Frank their respective workforces. The GFEP Act) requires FHFA and certain other National Defense Authorization Act for Fiscal Year 2018, Public Law 115–91, section 805, 131 Stat. ensures transparency, clarity, and Federal agencies each to establish an 1283, 1456 (2017), codified at 41 U.S.C. 134. The consistency in the good faith effort Office of Minority and Women Civilian Agency Acquisition Council Memorandum review process. Covered contractors Inclusion (OMWI) responsible for all for Civilian Agencies dated February 16, 2018 provides instructions to agencies that desire to issue matters of the agency relating to a class deviation prior to this change being issued such a deviation to increase the simplified diversity in management, employment, incorporated in the FAR. To date, FHFA has not acquisition threshold.

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agree to provide documentation of the request this information from their and subcontracts include a clause good faith effort they have made in covered subcontractors, who, because implementing E.O. 11246. OFCCP support of this commitment within 10 the substance of the MWI Clause would regulations require each contractor with business days after a request from be included in their subcontracts, would 50 or more employees and a Federal FHFA. According to the GFEP, ‘‘OMWI have a contractual obligation to keep contract or subcontract of $50,000 or will rely on the conclusions of a prior records and report data as required more to maintain records on the race, GFE review if OMWI conducted that under the MWI Clause. ethnicity, gender, and EEO–1 job review within the past two fiscal years.’’ FHFA data on the dollar value of category of each employee.5 OFCCP FHFA’s OMWI implemented the contracts awarded by the Agency from regulations also require each such GFEP by conducting its first round of the beginning of fiscal year 2016 contractor to: (1) Demonstrate that it has reviews of 20 covered contractors in through the third quarter of fiscal year made a good faith effort to remove May 2018. OMWI initiated another 2019 shows that 61 contractors were identified barriers, expand employment round of reviews in December 2018. The subject to the MWI Clause. FHFA opportunities, and produce measurable contractors’ sizes ranged from small believes that 44 of those contractors results; 6 and (2) develop and maintain companies to large corporations. In have 50 or more employees, while 17 a written program summary describing March 2019, OMWI provided a contractors have fewer than 50 the policies, practices, and procedures summary of its reviews of 32 covered employees. FHFA estimates that no that the contractor uses to ensure that contractors. OMWI’s GFEP review found more than two subcontracts with a applicants and employees received that all the selected contractors had dollar value of $150,000 or more were equal opportunities for employment and submitted satisfactory information to awarded by Agency contractors during advancement.7 In lieu of creating and show compliance with their GFE that same time period. Both of those maintaining a separate workforce contractual obligation. OMWI also subcontractors have 50 or more inclusion plan to submit in satisfaction considered developing new tools to employees each. Thus, over the of the MWI Clause, a contractor or capture and display information from preceding three years, a total of 63 subcontractor with 50 or more GFE reviews to streamline the current contractors and subcontractors were employees could submit the written process. subject to the MWI Clause—46 of which program summary that it is already B. Need for and Use of the Information have 50 or more employees and 17 of required to maintain under the OFCCP Collection which have fewer than 50 employees. regulations to demonstrate its good faith Based on these figures, FHFA efforts to ensure the fair inclusion of The purpose of this information estimates that, on average over the next minorities and women in its workforce. collection is to fulfill the requirements three years, 48 contractors and With respect to reporting burden, of section 342(c) of the Dodd-Frank Act. subcontractors with 50 or more FHFA estimates that it will take each The collected information allows employees and 18 contractors or contractor or subcontractor with 50 or FHFA’s OMWI Director to determine subcontractors with fewer than 50 more employees approximately one whether covered contractors and employees will be subject to the MWI hour to retrieve, review, and submit the subcontractors have complied with their Clause at any given time. As mentioned documentation specified in the MWI contractual obligations to make good above, the GFEP provides that OMWI Clause. Thus, the estimate of the faith efforts to ensure, to the maximum will rely on the conclusions of a prior triennial burden upon contractors or extent possible consistent with GFE review if OMWI conducted that subcontractors with 50 or more applicable law, the fair inclusion of review within the past two fiscal years. employees associated with reporting minorities and women in their Accordingly, a covered contractor or requirements under this information respective workforces. subcontractor is required to submit new collection is 48 hours (48 respondents × C. Burden Estimate information only once within any three 1 hour per respondent) and the annual year period. burden is 16 hours. FHFA estimates that the average annual burden imposed on all (1) Documentation Submitted by (2) Documentation Submitted by respondents by this information Contractors With 50 or More Employees Contractors With Fewer Than 50 collection over the next three years will FHFA estimates that the average Employees be 172 hours. annual burden on contractors with 50 or FHFA estimates that the average Because, as explained below, the more employees will be 16 hours (0 annual burden on contractors and amount of burden imposed upon a recordkeeping hours + 16 reporting subcontractors with fewer than 50 contractor by this information collection hours). employees will be 156 hours (150 will differ depending upon whether the Because Federal contractors with 50 recordkeeping hours + 6 reporting contractor has 50 or more employees, or more employees are already required hours). FHFA has based its total burden to maintain the same types of records OFCCP regulations require contractors estimate on two separate sets of that may be requested pursuant to the with fewer than 50 employees to calculations—(1) one for contractors and MWI Clause under regulations maintain records on the race, ethnicity, subcontractors with 50 or more implementing Title VII of the Civil and gender of each employee.8 FHFA employees (16 hours); and (2) another Rights Act of 1964 3 and Executive believes that such contractors also keep for contractors and subcontractors with Order 11246 (E.O. 11246),4 this EEO–1 job category information in the fewer than 50 employees (156 hours). information collection does not impose normal course of business, despite the FHFA includes the MWI Clause in additional recordkeeping burdens on fact that they are not required by law to Agency contracts with a dollar value such contractors and subcontractors. do so. However, contractors or greater than $150,000. Under the MWI FAR 52.222–26, Equal Opportunity, subcontractors with fewer than 50 Clause, FHFA may also request requires that such contractors’ contracts information about covered 5 See 41 CFR 60–1.7. subcontractors’ ownership status, 3 42 U.S.C. 2000e, et seq. 6 See 41 CFR 60–2.17. workforce demographics, and workforce 4 Exec. Order No. 11246, 30 FR 12319 (Sept. 28, 7 See 41 CFR 60–2.31. inclusion plans. Contractors would 1965). 8 See 41 CFR 60–3.4.

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employees may not have the type of contractors and subcontractors with President) 230 South LaSalle Street, written program summary that is fewer than 50 employees will be 18 Chicago, Illinois 60690–1414: required of larger contractors under the hours (18 respondents × 1 hour per 1. Bath State Bancorp Employee Stock OFCCP regulations or any similar respondent), with an annual burden of Ownership Plan With 401(k) Provisions, document that could be submitted as a 6 hours. Bath, Indiana; to become a bank holding workforce inclusion plan under the company by acquiring Bath State D. Comment Request MWI Clause. Accordingly, such Bancorp, and thereby indirectly acquire contractors or subcontractors may need FHFA requests written comments on control of Bath State Bank, both of Bath, to create a workforce inclusion plan to the following: (1) Whether the collection Indiana. of information is necessary for the comply with the MWI Clause. Board of Governors of the Federal Reserve In order to estimate the burden proper performance of FHFA functions, System, May 21, 2020. including whether the information has associated with creating a workforce Yao-Chin Chao, inclusion plan, FHFA considered the practical utility; (2) the accuracy of Assistant Secretary of the Board. OFCCP’s burden estimates for the time FHFA’s estimates of the burdens of the needed to develop the written program collection of information; (3) ways to [FR Doc. 2020–11326 Filed 5–26–20; 8:45 am] summaries required under its enhance the quality, utility, and clarity BILLING CODE P regulations.9 In its OMB Supporting of the information collected; and (4) Statement, the OFCCP estimated that a ways to minimize the burden of the contractor with 50 to 100 employees collection of information on FEDERAL TRADE COMMISSION would take approximately 73 hours to respondents, including through the use create an initial written program of automated collection techniques or Agency Information Collection summary. While the OFCCP regulations other forms of information technology. Activities; Submission for OMB Review; Comment Request require contractors to perform time- Robert Winkler, consuming quantitative analyses when Chief Information Officer, Federal Housing AGENCY: Federal Trade Commission developing their written program Finance Agency. (FTC). summaries, such analyses would not be [FR Doc. 2020–11259 Filed 5–26–20; 8:45 am] ACTION: Notice and request for comment. required in connection with the creation BILLING CODE 8070–01–P of a workforce inclusion plan. For this SUMMARY: The FTC requests that the reason, FHFA believes that a contractor Office of Management and Budget could develop a workforce inclusion (OMB) extend for three years the current plan in about one-third of the time that FEDERAL RESERVE SYSTEM Paperwork Reduction Act (PRA) it would take to develop the written Formations of, Acquisitions by, and clearance for information collection program summary required under the Mergers of Bank Holding Companies requirements contained in the Informal OFCCP regulations. Dispute Settlement Procedures Rule (the FHFA estimates that a contractor or The companies listed in this notice Dispute Settlement Rule or the Rule). subcontractor with fewer than 50 have applied to the Board for approval, The current clearance expires on May employees would spend approximately pursuant to the Bank Holding Company 31, 2020. 25 hours creating a workforce inclusion Act of 1956 (12 U.S.C. 1841 et seq.) DATES: Comments must be received by plan for the first time. It is likely that, (BHC Act), Regulation Y (12 CFR part June 26, 2020. going forward, many small contractors 225), and all other applicable statutes ADDRESSES: Written comments and and subcontractors will simply submit and regulations to become a bank recommendations for the proposed updated versions of workforce inclusion holding company and/or to acquire the information collection should be sent plans that they have submitted assets or the ownership of, control of, or within 30 days of publication of this previously. For purposes of this burden the power to vote shares of a bank or notice to www.reginfo.gov/public/do/ estimate, however, FHFA has assumed bank holding company and all of the PRAMain. Find this particular that all small contractors and banks and nonbanking companies information collection by selecting subcontractors will need to create a new owned by the bank holding company, ‘‘Currently under 30-day Review—Open plan every time they are required to including the companies listed below. for Public Comments’’ or by using the submit information under the MWI The applications listed below, as well search function. The reginfo.gov web clause. This results in an estimated as other related filings required by the link is a United States Government average triennial recordkeeping burden Board, if any, are available for website produced by OMB and the on all contractors and subcontractors immediate inspection at the Federal with fewer than 50 employees over the Reserve Bank indicated. The General Services Administration (GSA). next three years of 450 hours (18 applications will also be available for Under PRA requirements, OMB’s Office respondents × 25 hours per respondent), inspection at the offices of the Board of of Information and Regulatory Affairs with an annual burden of 150 hours. Governors. Interested persons may (OIRA) reviews Federal information As with larger entities, FHFA express their views in writing on the collections. estimates that it will take each standards enumerated in the BHC Act FOR FURTHER INFORMATION CONTACT: contractor and subcontractor with fewer (12 U.S.C. 1842(c)). Christine M. Todaro, Attorney, Division than 50 employees approximately one Comments regarding each of these of Marketing Practices, Bureau of hour to retrieve, review, and submit the applications must be received at the Consumer Protection, Federal Trade documentation specified in the MWI Reserve Bank indicated or the offices of Commission, 600 Pennsylvania Avenue Clause. Thus, FHFA estimates that the the Board of Governors, Ann E. NW, Washington, DC 20580, (202) 326– average triennial reporting burden on all Misback, Secretary of the Board, 20th 3711. Street and Constitution Avenue NW, SUPPLEMENTARY INFORMATION: 9 See PRA Supporting Statement for the OFCCP Washington, DC 20551–0001, not later Title: Informal Dispute Settlement Recordkeeping and Requirements-Supply and Service Program, OMB Control No. 1250–0003, at than June 25, 2020. Procedures Rule (the Dispute Settlement https://www.reginfo.gov/public/do/ A. Federal Reserve Bank of Chicago Rule or the Rule), 16 CFR part 703. PRAViewDocument?ref_nbr=201906-1250-001. (Colette A. Fried, Assistant Vice OMB Control Number: 3084–0113.

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Type of Review: Extension of a public record of this proceeding at the descriptive study, Adoption Call to currently approved collection. https://www.regulations.gov website. Action (ACTA) Data Collection. Likely Respondents: Warrantors Because your comment will be made DATES: Comments due within 60 days of (Automobile Manufacturers) and public, you are solely responsible for publication. In compliance with the Informal Dispute Settlement making sure that your comment does requirements of Section 3506(c)(2)(A) of Mechanisms. not include any sensitive personal the Paperwork Reduction Act of 1995, Estimated Annual Burden Hours: information, such as anyone’s Social ACF is soliciting public comment on the 9,055 (derived from 6,121 recordkeeping Security number; date of birth; driver’s specific aspects of the information hours in addition to 2,040 reporting license number or other state collection described above. hours and 894 disclosure hours). identification number, or foreign ADDRESSES: Copies of the proposed Estimated Annual Labor Costs: country equivalent; passport number; collection of information can be $209,595. financial account number; or credit or obtained and comments may be Estimated Annual Capital or Other debit card number. You are also solely Non-labor Costs: $314,566. forwarded by emailing infocollection@ responsible for making sure that your acf.hhs.gov. Alternatively, copies can Abstract: On March 16, 2020, the FTC comment does not include any sensitive sought public comment on the also be obtained by writing to the health information, such as medical Administration for Children and information collection requirements records or other individually associated with the Rule. 85 FR 14939. Families, Office of Planning, Research identifiable health information. In and Evaluation (OPRE), 330 C Street No germane comments were received.1 addition, your comment should not Pursuant to the OMB regulations, 5 CFR SW, Washington, DC 20201, Attn: ACF include any ‘‘trade secret or any Reports Clearance Officer. All requests, part 1320, that implement the PRA, 44 commercial or financial information U.S.C. 3501 et seq., the FTC is providing emailed or written, should be identified which . . . is privileged or by the title of the information collection. this second opportunity for public confidential’’ —as provided by Section comment while seeking OMB approval 6(f) of the FTC Act, 15 U.S.C. 46(f), and SUPPLEMENTARY INFORMATION: to renew the pre-existing clearance for FTC Rule 4.10(a)(2), 16 CFR 4.10(a)(2)— Description: The ACTA is an effort by the Rule. including in particular competitively the ACF Children’s Bureau. The The Dispute Settlement Rule is one of sensitive information such as costs, purpose of the ACTA is to engage child three rules that the FTC implemented sales statistics, inventories, formulas, welfare agencies to improve the pursuant to requirements of the patterns, devices, manufacturing timeliness and likelihood of Magnuson-Moss Warranty Act, 15 processes, or customer names. permanency for children who are U.S.C. 2301 et seq. (Warranty Act or waiting for adoption. This new Act). The Rule specifies the minimum Josephine Liu, information collection will provide the standards which must be met by any Assistant General Counsel for Legal Counsel. Children’s Bureau with an informal dispute settlement mechanism [FR Doc. 2020–11293 Filed 5–26–20; 8:45 am] understanding of agency target (IDSM) that is incorporated into a BILLING CODE 6750–01–P populations, specific strategies written consumer product warranty and (interventions), and outcomes which the consumer is required to use measurement, in order to inform before pursuing legal remedies under technical assistance strategies and the Act in court (known as the ‘‘prior DEPARTMENT OF HEALTH AND provide a national picture of the overall resort requirement’’). HUMAN SERVICES success of the initiative. Baseline data The Dispute Settlement Rule will be collected with an initial survey Administration for Children and standards for IDSMs include (Baseline Survey), followed by two Families requirements concerning the administrations of a follow-up survey mechanism’s structure (e.g., funding, Proposed Information Collection instrument (Progress Update Survey) staffing, and neutrality), the Activity; Adoption Call to Action Data designed to collect process and outcome qualifications of staff or decision Collection (New Data Collection) measures at two additional points in makers, the mechanism’s procedures for time. The instruments focus on: (1) resolving disputes (e.g., notification, AGENCY: Administration on Children, Identifying the target population(s) investigation, time limits for decisions, Youth and Families; Administration for agencies are addressing, (2) and follow-up), recordkeeping, and Children and Families; HHS. understanding elements of intervention annual audits. The Rule requires that ACTION: Request for Public Comment. implementation (process measures), and IDSMs establish written operating (3) capturing information related to the procedures and provide copies of those SUMMARY: The Administration on outcomes of these efforts. procedures upon request. Children, Youth and Families (ACYF), Respondents: Respondents of these Administration for Children and data collection instruments will include Request for Comment Families (ACF), U.S. Department of one representative from each of the 53 Your comment—including your name Health and Human Services (HHS), is child welfare agencies who are and your state—will be placed on the proposing to collect data for a new participating in ACTA activities.

ANNUAL BURDEN ESTIMATES

Total number Average Instrument Total number of responses burden hours Total burden Annual burden of respondents per respondent per response hours hours

Adoption Call to Action: Baseline Survey ...... 53 1 .33 18 6

1 The Commission received six non-germane comments.

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ANNUAL BURDEN ESTIMATES—Continued

Total number Average Instrument Total number of responses burden hours Total burden Annual burden of respondents per respondent per response hours hours

Adoption Call to Action: Progress Update ...... 53 2 .25 27 9

Estimated Total Annual Burden Administration for Children and conducted under the National Response Hours: 15. Families; HHS. Framework’s Emergency Support Comments: The Department ACTION: Request for Public Comment. Function 6 (ESF 6), Mass Care, specifically requests comments on (a) Emergency Assistance, Temporary whether the proposed collection of SUMMARY: The Office of Human Housing, and Human Services. information is necessary for the proper Services, Emergency Preparedness and OHSEPR’s ESF 6 disaster operations performance of the functions of the Response (OHSEPR) is the emergency include implementation of disaster agency, including whether the management office of the U.S. human services case management information shall have practical utility; Department of Health and Human missions to connect disaster survivors to (b) the accuracy of the agency’s estimate Services’ (HHS) Administration for resources and services that support their of the burden of the proposed collection Children and Families (ACF). OHSEPR individual and family recovery from of information; (c) the quality, utility, is requesting a 3-year extension of the disaster. and clarity of the information to be Immediate Disaster Case Management collected; and (d) ways to minimize the Intake Assessment tool (OMB #0970– The primary purpose of the burden of the collection of information 0461). The content of the form has not information collection pertains to the on respondents, including through the changed. There is one modification to implementation of OHSEPR’s delivery use of automated collection techniques the proposed use of resulting aggregate of case management services to or other forms of information data, to include a use to advance individuals and households impacted technology. Consideration will be given research with a goal of developing a by a disaster. OHSEPR’s disaster case to comments and suggestions submitted Quality Assurance/Performance managers collect information during within 60 days of this publication. Improvement process. intake assessments that is utilized to Authority: Section 203 of Section II: DATES: Comments due within 30 days of identify a disaster survivor’s unmet Adoption Opportunities of the Child Abuse publication. OMB is required to make a needs and connect them with resources. Prevention and Treatment Act (42 U.S.C. decision concerning the collection of OHSEPR also utilizes this information 5113). information between 30 and 60 days to target resources and improve its Mary B. Jones, after publication of this document in the disaster human services operations. ACF/OPRE Certifying Officer. Federal Register. Therefore, a comment The information collection will be is best assured of having its full effect [FR Doc. 2020–11362 Filed 5–26–20; 8:45 am] used to support OHSEPR’s goal to if OMB receives it within 30 days of BILLING CODE 4184–01–P quickly identify critical gaps, resources, publication. needs, and services to support state, ADDRESSES: Written comments and local, and non-profit capacity for DEPARTMENT OF HEALTH AND recommendations for the proposed HUMAN SERVICES disaster case management and to information collection should be sent augment and build human service Administration for Children and within 30 days of publication of this capacity where none exists. All Families notice to www.reginfo.gov/public/do/ information gathered will be used to (1) PRAMain. Find this particular provide case management services to [OMB #0970–0461] information collection by selecting survivors and (2) inform the delivery of ‘‘Currently under 30-day Review—Open disaster case management services and Submission for OMB Review; for Public Comments’’ or by using the programmatic strategies and Immediate Disaster Case Management search function. Intake Assessment improvements. SUPPLEMENTARY INFORMATION: AGENCY: Office of Human Services, Description: OHSEPR leads HHS’s and Respondents: Individuals impacted by Emergency Preparedness and Response; ACF’s disaster human services missions a disaster.

ANNUAL BURDEN ESTIMATES

Total number Average Instrument Total number of responses burden hours Total burden Annual burden of respondents per respondent per response hours hours

Immediate Disaster Case Management Intake Assess- ment ...... 33,489 1 1 33,489 11,163

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Estimated Total Annual Burden ACTION: Request for public comment. ADDRESSES: Written comments and Hours: 11,163. recommendations for the proposed SUMMARY: The Office of Refugee Authority: Section 426 of the Robert T. information collection should be sent Stafford Disaster Relief and Emergency Resettlement (ORR) is requesting a 3- within 30 days of publication of this Assistance Act, as amended, 42 U.S.C. year extension of the application and notice to www.reginfo.gov/public/do/ Withdrawal of Application or PRAMain. Find this particular Mary B. Jones, Declination of Placement Form for the information collection by selecting ACF/OPRE Certifying Officer. Unaccompanied Refugee Minors (URM) ‘‘Currently under 30-day Review—Open [FR Doc. 2020–11312 Filed 5–26–20; 8:45 am] Program. Proposed revisions to each for Public Comments’’ or by using the BILLING CODE 4184–PC–P instrument are minimal. These forms search function. were previously approved under OMB SUPPLEMENTARY INFORMATION: #0970–0498, expiration 7/31/2020. ORR Description: The URM Program DEPARTMENT OF HEALTH AND is currently seeking a new OMB number Application is completed on behalf of HUMAN SERVICES specific to these forms, as they were unaccompanied children in the United previously approved as part of another States who are applying for entry into Administration for Children and information collection package for Families the URM Program. The application ORR’s Unaccompanied Alien Children’s includes biographical data and Submission for OMB Review; Office of program. information on the child’s needs to Refugee Resettlement Unaccompanied DATES: Comments due within 30 days of support placement efforts. The Refugee Minors Program Application publication. OMB is required to make a Withdrawal of Application or and Withdrawal of Application or decision concerning the collection of Declination of Placement Form is Declination of Placement Form information between 30 and 60 days completed when a child is no longer (Previous OMB #0970–0498) after publication of this document in the interested in entering the URM program. Federal Register. Therefore, a comment Respondents: Case managers, AGENCY: Office of Refugee Resettlement, is best assured of having its full effect attorneys, or other representatives Administration for Children and if OMB receives it within 30 days of working with unaccompanied children Families, HHS. publication. who are eligible for the URM Program.

ANNUAL BURDEN ESTIMATES

Total number Average Instrument Total number of responses per burden hours Total burden Annual burden of respondents respondent per response hours hours

Unaccompanied Refugee Minors Program Application ... 350 3 1.50 1,575 525

Withdrawal of Application or Declination of Placement Form ...... 30 3 0.20 18 6

Estimated Total Annual Burden entitled ‘‘Financial Transparency and Electronic Submissions Hours: 531. Efficiency of the Prescription Drug User Submit electronic comments in the Authority: 8 U.S.C. 1522(d). Fee Act, Biosimilar User Fee Act, and following way: Generic Drug User Fee Amendments,’’ • Federal eRulemaking Portal: Mary B. Jones, and an opportunity for public comment. https://www.regulations.gov. Follow the ACF/OPRE Certifying Officer. This public meeting will take place instructions for submitting comments. [FR Doc. 2020–11307 Filed 5–26–20; 8:45 am] virtually due to extenuating Comments submitted electronically, BILLING CODE 4184–45–P circumstances and will be held by including attachments, to https:// webcast only. www.regulations.gov will be posted to DATES: The public meeting will take the docket unchanged. Because your DEPARTMENT OF HEALTH AND place remotely on June 22, 2020, from comment will be made public, you are HUMAN SERVICES 9 a.m. to 11 a.m. See the SUPPLEMENTARY solely responsible for ensuring that your INFORMATION section for registration date Food and Drug Administration comment does not include any and information. confidential information that you or a [Docket No. FDA–2019–N–1875] ADDRESSES: You may submit comments third party may not wish to be posted, as follows. Please note that late, such as medical information, your or Financial Transparency and Efficiency untimely filed comments will not be anyone else’s Social Security number, or of the Prescription Drug User Fee Act, considered. Electronic comments must confidential business information, such Biosimilar User Fee Act, and Generic be submitted on or before July 22, 2020. as a manufacturing process. Please note Drug User Fee Amendments; Public The https://www.regulations.gov that if you include your name, contact Meeting; Request for Comments electronic filing system will accept information, or other information that AGENCY: Food and Drug Administration, comments until 11:59 p.m. Eastern Time identifies you in the body of your HHS. at the end of July 22, 2020. Comments comments, that information will be received by mail/hand delivery/courier posted on https://www.regulations.gov. ACTION: Notice of public meeting; • request for comments. (for written/paper submissions) will be If you want to submit a comment considered timely if they are with confidential information that you SUMMARY: The Food and Drug postmarked or the delivery service do not wish to be made available to the Administration (FDA, the Agency, or acceptance receipt is on or before that public, submit the comment as a we) is hosting a virtual public meeting date. written/paper submission and in the

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manner detailed (see ‘‘Written/Paper www.govinfo.gov/content/pkg/FR-2015- Each of these user fee programs Submissions’’ and ‘‘Instructions’’). 09-18/pdf/2015-23389.pdf. included a set of commitments related Docket: For access to the docket to to financial management. These Written/Paper Submissions read background documents or the included commitments to publish a 5- Submit written/paper submissions as electronic and written/paper comments year financial plan that should be follows: received, go to https:// updated annually, develop resource • Mail/Hand delivery/Courier (for www.regulations.gov and insert the capacity planning capability and to written/paper submissions): Dockets docket number, found in brackets in the modernize time reporting practices, and Management Staff (HFA–305), Food and heading of this document, into the have a third-party evaluation of resource Drug Administration, 5630 Fishers ‘‘Search’’ box and follow the prompts management practices for these user fee Lane, Rm. 1061, Rockville, MD 20852. and/or go to the Dockets Management programs. In addition, each user fee • For written/paper comments Staff, 5630 Fishers Lane, Rm. 1061, program includes a commitment to host submitted to the Dockets Management Rockville, MD 20852, 240–402–7500. a public meeting in the third quarter of Staff, FDA will post your comment, as FOR FURTHER INFORMATION CONTACT: each fiscal year, beginning in FY 2019, well as any attachments, except for Monica Ellerbe, Office of Finance, to discuss specific topics. information submitted, marked and Budget and Acquisitions, 4041 Powder II. Topics for Discussion at the Public identified, as confidential, if submitted Mill Rd., Rm. 72044, Beltsville, MD Meeting as detailed in ‘‘Instructions.’’ 20750, 301–796–5276, Monica.Ellerbe@ Instructions: All submissions received fda.hhs.gov. This public meeting will provide FDA the opportunity to update interested must include the Docket No. FDA– SUPPLEMENTARY INFORMATION: 2019–N–1875 for ‘‘Financial public stakeholders on topics related to Transparency and Efficiency of I. Background the financial management of PDUFA VI, BsUFA II, and GDUFA II. FDA will Prescription Drug User Fee Act, The public meeting will include Biosimilar User Fee Act, and Generic present the 5-year financial plans for presentations from FDA on: (1) The 5- each of these programs and update Drug User Fee Amendments; Public year plans for the Prescription Drug Meeting; Request for Comments.’’ participants on the progress towards User Fee Act (PDUFA) VI, Biosimilar implementing resource capacity Received comments, those filed in a User Fee Act (BsUFA) II, and Generic timely manner, will be placed in the planning and modernizing its time Drug User Fee Amendments (GDUFA) reporting approach. In addition, FDA docket and, except for those submitted II; (2) the Agency’s progress in as ‘‘Confidential Submissions,’’ publicly will provide an update on the Agency’s implementing resource capacity progress in addressing the findings from viewable at https://www.regulations.gov planning and modernized time or at the Dockets Management Staff the independent third party evaluation reporting; and (3) the Agency’s progress of the resource management associated between 9 a.m. and 4 p.m., Monday in addressing the findings from the through Friday. with PDUFA, BsUFA, and GDUFA that independent third party evaluation of concluded and was published in FY • Confidential Submissions—To the resource management associated 2019. To view the evaluation submit a comment with confidential with PDUFA, BsUFA, and GDUFA that assessment report, please visit here: information that you do not wish to be concluded and was published in fiscal https://www.fda.gov/media/127605/ made publicly available, submit your year (FY) 2019. This meeting is download. comments only as a written/paper intended to satisfy FDA’s commitment submission. You should submit two to host an annual public meeting in the III. Attending the Public Meeting copies total. One copy will include the third quarter of each fiscal year Registration: To register for the public information you claim to be confidential beginning in FY 2019 and can be found meeting, please visit the following with a heading or cover note that states in the Commitment letters listed below website: https://www.eventbrite.com/e/ ‘‘THIS DOCUMENT CONTAINS (II.B.3 of PDUFA VI (p. 38), IV.B.3 of public-meeting-financial-transparency- CONFIDENTIAL INFORMATION.’’ The BsUFA II (p. 28), and VI.B.4 of GDUFA and-efficiency-of-user-fee-programs- Agency will review this copy, including II (p.22)). registration-101672491158. Please the claimed confidential information, in This public meeting is intended to provide complete contact information its consideration of comments. The meet performance commitments for each attendee, including name, title, second copy, which will have the included in PDUFA VI, BsUFA II, and affiliation, address, email, and claimed confidential information GDUFA II. These user fee programs telephone. redacted/blacked out, will be available were reauthorized as part of the FDA Persons interested in attending this for public viewing and posted on Reauthorization Act of 2017 (FDARA) public meeting must register by June 19, https://www.regulations.gov. Submit (Pub. L. 115–52) signed by the President 2020, at 11:59 p.m. Eastern Time. both copies to the Dockets Management on August 18, 2017. The complete set of Registrants will receive confirmation Staff. If you do not wish your name and performance goals for each program are once they have been accepted. We will contact information to be made publicly available at: let registrants know if registration closes available, you can provide this • PDUFA VI program: https:// before the day of the public meeting. information on the cover sheet and not www.fda.gov/downloads/ForIndustry/ If you need special accommodations in the body of your comments and you UserFees/PrescriptionDrugUserFee/ due to a disability, please contact must identify this information as UCM511438.pdf; Monica Ellerbe no later than June 15, ‘‘confidential.’’ Any information marked • BsUFA II program: https:// 2020, 11:59 p.m. Eastern Time. as ‘‘confidential’’ will not be disclosed www.fda.gov/downloads/forindustry/ Streaming Webcast of the Public except in accordance with 21 CFR 10.20 userfees/biosimilaruserfeeactbsufa/ Meeting: The webcast for this public and other applicable disclosure law. For ucm521121.pdf; and meeting is https://collaboration.fda.gov/ more information about FDA’s posting • GDUFA II program: https:// fdafinancial062220/. of comments to public dockets, see 80 www.fda.gov/downloads/forindustry/ If you have never attended a Connect FR 56469, September 18, 2015, or access userfees/genericdruguserfees/ Pro event before, test your connection at the information at: https:// ucm525234.pdf. https://collaboration.fda.gov/common/

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help/en/support/meeting_test.htm. To Agency considers your comment on this a.m. and 4 p.m., Monday through get a quick overview of the Connect Pro draft guidance before it begins work on Friday. program, visit https://www.adobe.com/ the final version of the guidance. • Confidential Submissions—To go/connectpro_overview. FDA has ADDRESSES: You may submit comments submit a comment with confidential verified the website addresses in this on any guidance at any time as follows: information that you do not wish to be document, as of the date this document made publicly available, submit your publishes in the Federal Register, but Electronic Submissions comments only as a written/paper websites are subject to change over time. Submit electronic comments in the submission. You should submit two Transcripts: Please be advised that as following way: copies total. One copy will include the soon as a transcript of the public • Federal eRulemaking Portal: information you claim to be confidential meeting is available, it will be accessible https://www.regulations.gov. Follow the with a heading or cover note that states at https://www.regulations.gov. It may instructions for submitting comments. ‘‘THIS DOCUMENT CONTAINS be viewed at the Dockets Management Comments submitted electronically, CONFIDENTIAL INFORMATION.’’ The Staff (HFA–305), Food and Drug including attachments, to https:// Agency will review this copy, including Administration, 5630 Fishers Lane, Rm. www.regulations.gov will be posted to the claimed confidential information, in 1061, Rockville, MD 20852. the docket unchanged. Because your its consideration of comments. The comment will be made public, you are second copy, which will have the Dated: May 20, 2020. solely responsible for ensuring that your claimed confidential information Lowell J. Schiller, comment does not include any redacted/blacked out, will be available Principal Associate Commissioner for Policy. confidential information that you or a for public viewing and posted on [FR Doc. 2020–11306 Filed 5–26–20; 8:45 am] third party may not wish to be posted, https://www.regulations.gov. Submit BILLING CODE 4164–01–P such as medical information, your or both copies to the Dockets Management anyone else’s Social Security number, or Staff. If you do not wish your name and confidential business information, such contact information to be made publicly DEPARTMENT OF HEALTH AND as a manufacturing process. Please note available, you can provide this HUMAN SERVICES that if you include your name, contact information on the cover sheet and not information, or other information that in the body of your comments and you Food and Drug Administration identifies you in the body of your must identify this information as [Docket No. FDA–2020–D–1301] comments, that information will be ‘‘confidential.’’ Any information marked posted on https://www.regulations.gov. as ‘‘confidential’’ will not be disclosed Q3C(R8) Recommendations for the • If you want to submit a comment except in accordance with 21 CFR 10.20 Permitted Daily Exposures for Three with confidential information that you and other applicable disclosure law. For Solvents—2-Methyltetrahydrofuran, do not wish to be made available to the more information about FDA’s posting Cyclopentyl Methyl Ether, and Tert- public, submit the comment as a of comments to public dockets, see 80 Butyl Alcohol—According to the written/paper submission and in the FR 56469, September 18, 2015, or access Maintenance Procedures for the manner detailed (see ‘‘Written/Paper the information at: https:// Guidance Q3C Impurities: Residual Submissions’’ and ‘‘Instructions’’). www.govinfo.gov/content/pkg/FR-2015- Solvents; International Council for 09-18/pdf/2015-23389.pdf. Harmonisation; Draft Guidance for Written/Paper Submissions Docket: For access to the docket to Industry; Availability Submit written/paper submissions as read background documents or the follows: electronic and written/paper comments AGENCY: Food and Drug Administration, • Mail/Hand delivery/Courier (for received, go to https:// HHS. written/paper submissions): Dockets www.regulations.gov and insert the ACTION: Notice of availability. Management Staff (HFA–305), Food and docket number, found in brackets in the Drug Administration, 5630 Fishers heading of this document, into the SUMMARY: The Food and Drug Lane, Rm. 1061, Rockville, MD 20852. ‘‘Search’’ box and follow the prompts Administration (FDA or Agency) is • For written/paper comments and/or go to the Dockets Management announcing the availability of draft submitted to the Dockets Management Staff, 5630 Fishers Lane, Rm. 1061, recommendations for new permitted Staff, FDA will post your comment, as Rockville, MD 20852. daily exposures (PDEs) for the residual well as any attachments, except for You may submit comments on any solvents 2-methyltetrahydrofuran, information submitted, marked and guidance at any time (see 21 CFR cyclopentyl methyl ether, and tert-butyl identified, as confidential, if submitted 10.115(g)(5)). alcohol. The PDEs were developed as detailed in ‘‘Instructions.’’ Submit written requests for single according to the methods for Instructions: All submissions received copies of this guidance to the Division establishing exposure limits included in must include the Docket No. FDA– of Drug Information, Center for Drug the guidance for industry entitled ‘‘Q3C 2020–D–1301 for ‘‘Q3C(R8) Evaluation and Research, Food and Impurities: Residual Solvents.’’ The Recommendations for the Permitted Drug Administration, 10001 New recommendations were prepared under Daily Exposures for Three Solvents—2- Hampshire Ave., Hillandale Building, the auspices of the International Council Methyltetrahydrofuran, Cyclopentyl 4th Floor, Silver Spring, MD 20993– for Harmonisation (ICH), formerly the Methyl Ether, and Tert-Butyl Alcohol— 0002, or the Office of Communication, International Conference on According to the Maintenance Outreach and Development, Center for Harmonisation. The draft guidance is Procedures for the Guidance Q3C Biologics Evaluation and Research intended to recommend acceptable Impurities: Residual Solvents.’’ (CBER), Food and Drug Administration, amounts for the listed residual solvents Received comments will be placed in 10903 New Hampshire Ave., Bldg. 71, in pharmaceuticals for the safety of the docket and, except for those Rm. 3128, Silver Spring, MD 20993– patients. submitted as ‘‘Confidential 0002. Send one self-addressed adhesive DATES: Submit either electronic or Submissions,’’ publicly viewable at label to assist that office in processing written comments on the draft guidance https://www.regulations.gov or at the your requests. The guidance may also be by July 26, 2024 to ensure that the Dockets Management Staff between 9 obtained by mail by calling CBER at 1–

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800–835–4709 or 240–402–8010. See membership in writing to the ICH alcohol—and agreed that the guidance the SUPPLEMENTARY INFORMATION section Secretariat. The ICH Secretariat, which should be made available for public for electronic access to the guidance coordinates the preparation of comment. The draft guidance is the document. documentation, operates as an product of the ICH Q3C EWG. FOR FURTHER INFORMATION CONTACT: international nonprofit organization and Comments on this draft will be Regarding the guidance: Timothy is funded by the Members of the ICH considered by FDA and the Quality McGovern, Center for Drug Evaluation Association. EWG. The ICH Assembly is the overarching This draft guidance has been left in and Research, Food and Drug body of the Association and includes the original ICH format. The final Administration, 10903 New Hampshire representatives from each of the ICH guidance will be reformatted and edited Ave., Bldg. 22, Rm. 6426, Silver Spring, members and observers. The Assembly to conform with FDA’s good guidance MD 20993–0002, 240–402–0477; or is responsible for the endorsement of practices regulation (21 CFR 10.115) and Stephen Ripley, Center for Biologics draft guidelines and adoption of final style before publication. The draft Evaluation and Research, Food and guidelines. FDA publishes ICH guidance, when finalized, will represent Drug Administration, 10903 New guidelines as FDA guidance. the current thinking of FDA on the PDEs Hampshire Ave., Bldg. 71, Rm. 7301, In the Federal Register of December for 2-methyltetrahydrofuran, Silver Spring, MD 20993–0002, 240– 24, 1997 (62 FR 67377), FDA published cyclopentyl methyl ether, and tert-butyl 402–7911. a notice announcing the availability of alcohol. It does not establish any rights Regarding the ICH: Amanda Roache, the ICH guidance for industry entitled for any person and is not binding on Center for Drug Evaluation and ‘‘Q3C Impurities: Residual Solvents.’’ FDA or the public. You can use an Research, Food and Drug The guidance makes recommendations alternative approach if it satisfies the Administration, 10903 New Hampshire as to what amounts of residual solvents requirements of the applicable statutes Ave., Bldg. 51, Rm. 6364, Silver Spring, are considered toxicologically and regulations. MD 20993–0002, 301–796–4548, acceptable for some residual solvents, or [email protected]. permitted daily exposure. Upon II. Paperwork Reduction Act of 1995 SUPPLEMENTARY INFORMATION: issuance in 1997, the text and appendix This draft guidance refers to I. Background 1 of the guidance contained several previously approved FDA collections of tables and a list of solvents categorizing information. These collections of In recent years, regulatory authorities residual solvents by toxicity, classes 1 information are subject to review by the and industry associations from around through 3, with class 1 being the most Office of Management and Budget the world have participated in many toxic. The ICH Quality Expert Working (OMB) under the Paperwork Reduction important initiatives to promote Group (EWG) agreed that the PDEs Act of 1995 (44 U.S.C. 3501–3521). The international harmonization of could be modified if reliable and more collections of information in 21 CFR regulatory requirements under the ICH. relevant toxicity data were brought to part 58 pertaining to good laboratory FDA has participated in several ICH the attention of the group and the practice for nonclinical laboratory meetings designed to enhance modified PDE could result in a revision studies have been approved under OMB harmonization and is committed to of the tables and list. control number 0910–0119. seeking scientifically based harmonized In 1999, ICH instituted a Q3C III. Electronic Access technical procedures for pharmaceutical maintenance agreement and formed a development. One of the goals of maintenance EWG (the Q3C EWG). The Persons with access to the internet harmonization is to identify and reduce agreement provided for the revisitation may obtain the draft guidance at https:// differences in technical requirements for of solvent PDEs and allowed for minor www.regulations.gov, https:// drug development among regulatory changes to the tables and list that www.fda.gov/drugs/guidance- agencies. include the existing PDEs. The compliance-regulatory-information/ ICH was established to provide an agreement also provided for new guidances-drugs, or https:// opportunity for harmonization solvents and PDEs that could be added www.fda.gov/vaccines-blood-biologics/ initiatives to be developed with input to the tables and list based on adequate guidance-compliance-regulatory- from both regulatory and industry toxicity data. In the Federal Register of information-biologics/biologics- representatives. FDA also seeks input February 12, 2002 (67 FR 6542), FDA guidances. from consumer representatives and briefly described the process for Dated: May 19, 2020. others. ICH is concerned with proposing future revisions to the PDEs. Lowell J. Schiller, harmonization of technical In the same notice, the Agency Principal Associate Commissioner for Policy. requirements for the registration of announced its decision to remove the pharmaceutical products for human use link to the tables and list in the Q3C [FR Doc. 2020–11280 Filed 5–26–20; 8:45 am] among regulators around the world. The guidance and create a stand-alone BILLING CODE 4164–01–P six founding members of the ICH are the document entitled ‘‘Q3C: Tables and European Commission; the European List’’ to facilitate making changes DEPARTMENT OF HEALTH AND Federation of Pharmaceutical Industries recommended by ICH; the document is HUMAN SERVICES Associations; FDA; the Japanese available at https://www.fda.gov/ Ministry of Health, Labour, and Welfare; downloads/drugs/guidancecompliance [Document Identifier: OS–0990–0421] the Japanese Pharmaceutical regulatoryinformation/guidances/ Manufacturers Association; and the ucm073395.pdf. ‘‘Q3C: Tables and List’’ Agency Father Generic Information Pharmaceutical Research and was updated in January 2017 to include Collection Request; 60-Day Public Manufacturers of America. The the recommended PDE for triethylamine Comment Request Standing Members of the ICH and methylisobutylketone. AGENCY: Office of the Secretary, HHS. Association include Health Canada and In March 2020, the ICH Assembly ACTION: Notice. Swissmedic. Any party eligible as a endorsed the draft PDEs for three Member in accordance with the ICH solvents—2-methyltetrahydrofuran, SUMMARY: In compliance with the Articles of Association can apply for cyclopentyl methyl ether, and tert-butyl requirement of the Paperwork

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Reduction Act of 1995, the Office of the techniques or other forms of information evaluation, research and demonstration Secretary (OS), Department of Health technology to minimize the information activities, and manages cross- and Human Services, is publishing the collection burden. Department planning activities such as following summary of a proposed Title of the Collection: ASPE Generic strategic planning, legislative planning, collection for public comment. Clearance for the Collection of and review of regulations. Integral to DATES: Comments on the ICR must be Qualitative Research and Assessment. this role, ASPE will use this mechanism received on or before July 27, 2020. OMB No.: 0990–0421. to conduct qualitative research, Abstract: The Office of the Assistant evaluation, or assessment, conduct ADDRESSES: Submit your comments to Secretary for Planning and Evaluation analyses, and understand needs, [email protected] or by calling (ASPE) is requesting an extension for barriers, or facilitators for HHS-related (202) 795–7714. their generic clearance for purposes of programs. FOR FURTHER INFORMATION CONTACT: conducting qualitative research. ASPE Need and Proposed Use of the When submitting comments or conducts qualitative research to gain a Information: ASPE is requesting requesting information, please include better understanding of emerging health comment on the burden for qualitative the document identifier 0990–0421– policy issues, develop future intramural research aimed at understanding 60D, and project title for reference, to and extramural research projects, and to emerging health and human services Sherrette Funn, the Reports Clearance ensure HHS leadership, agencies and policy issues. The goal of developing Officer, [email protected], or call offices have recent data and information these activities is to identify emerging 202–795–7714. to inform program and policy decision- issues and research gaps to ensure the SUPPLEMENTARY INFORMATION: Interested making. ASPE is requesting approval for successful implementation of HHS persons are invited to send comments at least four types of qualitative programs. The participants may include regarding this burden estimate or any research: (a) Interviews, (b) focus health and human services experts; other aspect of this collection of groups, (c) questionnaires, and (d) other national, state, and local health or information, including any of the qualitative methods. human services representatives; public following subjects: (1) The necessity and ASPE’s mission is to advise the health, human services, or healthcare utility of the proposed information Secretary of the Department of Health providers; and representatives of other collection for the proper performance of and Human Services on policy health or human services organizations. the agency’s functions; (2) the accuracy development in health, disability, The increase in burden from 747 in of the estimated burden; (3) ways to human services, data, and science, and 2014 to 1,300 respondents in 2017 enhance the quality, utility, and clarity provides advice and analysis on reflects an increase in the number of of the information to be collected; and economic policy. ASPE leads special research projects conducted over the (4) the use of automated collection initiatives, coordinates the Department’s estimate in 2014.

ESTIMATED ANNUALIZED BURDEN TABLE

Number of Average Type of respondent Form Number of responses per burden hours Total burden respondents respondent per response hours

Health Policy Stakeholder ...... Qualitative Research ...... 1,300 1 1 1,300

Dated: May 13, 2020. and personal information concerning Development Awards, and Research Scientist Sherrette A. Funn, individuals associated with the grant Awards; 93.278, Drug Abuse National Office of the Secretary, Paperwork Reduction applications, the disclosure of which Research Service Awards for Research Act Reports Clearance Officer. would constitute a clearly unwarranted Training; 93.279, Drug Abuse and Addiction [FR Doc. 2020–11289 Filed 5–26–20; 8:45 am] invasion of personal privacy. Research Programs, National Institutes of Health, HHS) BILLING CODE 4150–05–P Name of Committee: National Institute on Drug Abuse Special Emphasis Panel; Step Up Dated: May 20, 2020. for Substance Use Disorders (SUD): A Drug Tyeshia M. Roberson, DEPARTMENT OF HEALTH AND Target Initiative for Scientists Engaged in Program Analyst, Office of Federal Advisory HUMAN SERVICES Fundamental Research (U18—Clinical Trial Committee Policy. Not Allowed). National Institutes of Health Date: June 9, 2020. [FR Doc. 2020–11275 Filed 5–26–20; 8:45 am] Time: 9:00 a.m. to 5:00 p.m. BILLING CODE 4140–01–P National Institute on Drug Abuse; Agenda: To review and evaluate grant Notice of Closed Meeting applications. Place: National Institutes of Health, DEPARTMENT OF HEALTH AND Pursuant to section 10(d) of the Neurosciences Center Building, 6001 HUMAN SERVICES Federal Advisory Committee Act, as Executive Boulevard, Rockville, MD 20852 amended, notice is hereby given of the (Telephone Conference Call). National Institutes of Health following meeting. Contact Person: Trinh T. Tran, Scientific The meeting will be closed to the Research Officer, Office of Extramural Policy National Institute of Allergy and public in accordance with the and Review, Division of Extramural Research, National Institute on Drug Abuse, Infectious Diseases; Notice of Closed provisions set forth in sections NIH, 6001 Executive Boulevard, Room 4238, Meeting 552b(c)(4) and 552b(c)(6), Title 5 U.S.C., MSC 9550, Bethesda, MD 20892, (301) 827– as amended. The grant applications and 5843, [email protected]. Pursuant to section 10(d) of the the discussions could disclose (Catalogue of Federal Domestic Assistance Federal Advisory Committee Act, as confidential trade secrets or commercial Program Nos. 93.277, Drug Abuse Scientist amended, notice is hereby given of the property such as patentable material, Development Award for Clinicians, Scientist following meeting.

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The meeting will be closed to the and personal information concerning property such as patentable material, public in accordance with the individuals associated with the grant and personal information concerning provisions set forth in sections applications, the disclosure of which individuals associated with the grant 552b(c)(4) and 552b(c)(6), Title 5 U.S.C., would constitute a clearly unwarranted applications, the disclosure of which as amended. The grant applications and invasion of personal privacy. would constitute a clearly unwarranted the discussions could disclose Name of Committee: National Institute of invasion of personal privacy. confidential trade secrets or commercial Nursing Research Special Emphasis Panel: Name of Committee: National Center for property such as patentable material, Clinical Trial Planning Grants. Advancing Translational Sciences Special and personal information concerning Date: June 4, 2020. Emphasis Panel NTU. individuals associated with the grant Time: 12:00 p.m. to 5:00 p.m. Date: June 17, 2020. applications, the disclosure of which Agenda: To review and evaluate grant Time: 2:00 p.m. to 3:00 p.m. would constitute a clearly unwarranted applications. Agenda: To review and evaluate grant Place: National Institute of Nursing invasion of personal privacy. applications. Research, National Institutes of Health, 6701 Place: National Center for Advancing Name of Committee: National Institute of Democracy Boulevard, Bethesda, MD 20892 Translational Sciences, National Institutes of Allergy and Infectious Diseases Special (Telephone Conference Call). Health, 6701 Democracy Boulevard, Room Emphasis Panel; Emergency Awards: Rapid Contact Person: Cheryl Nordstrom, Ph.D., 1080, Bethesda, MD 20892 (Telephone Investigation of Severe Acute Respiratory Scientific Review Officer (Contractor), Center Conference Call). Syndrome Coronavirus 2 (SARS–CoV–2) and for Scientific Review, National Institutes of Contact Person: Barbara J. Nelson, Ph.D., Coronavirus Disease 2019 (COVID–19). Health, 6701 Rockledge Drive, Room 6187, Scientific Review Officer, Office of Scientific Date: June 10, 2020. Bethesda, MD 20892, (301) 435–1160. Review, National Center for Advancing Time: 11:00 a.m. to 4:00 p.m. This notice is being published less than 15 Translational Sciences, National Institutes of Agenda: To review and evaluate grant days prior to the meeting due to the timing Health, 6701 Democracy Boulevard, Room applications. limitations imposed by the review and 1080, Bethesda, MD 20892–4874, 301–435– Place: National Institute of Allergy and funding cycle. 0806, [email protected]. Infectious Diseases, National Institutes of Name of Committee: National Institute of (Catalogue of Federal Domestic Assistance Health, 5601 Fishers Lane, Room 3F52, Nursing Research Special Emphasis Panel: Program Nos. 93.859, Pharmacology, Rockville, MD 20892, (Virtual Meeting). Training Grant Applications. Physiology, and Biological Chemistry Contact Person: Jennifer Hartt Meyers, Date: June 12, 2020. Research; 93.350, B—Cooperative Ph.D., Scientific Review Officer, Scientific Time: 11:00 a.m. to 1:00 p.m. Agreements; 93.859, Biomedical Research Review Program, National Institute of Allergy Agenda: To review and evaluate grant and Research Training, National Institutes of and Infectious Diseases, National Institutes of applications. Health, HHS) Health, 5601 Fishers Lane, Room 3F52, Place: National Institute of Nursing Rockville, MD 20852, 301–761–6602, Research, National Institutes of Health, 6701 Dated: May 20, 2020. [email protected]. Democracy Boulevard, Bethesda, MD 20892 Melanie J. Pantoja, This notice is being published less than 15 (Telephone Conference Call). Program Analyst, Office of Federal Advisory days prior to the meeting due to the timing Contact Person: Weiqun Li, MD, Scientific Committee Policy. limitations imposed by the review and Review Officer, National Institute of Nursing [FR Doc. 2020–11272 Filed 5–26–20; 8:45 am] funding cycle. Research, National Institutes of Health, 6701 BILLING CODE 4140–01–P (Catalogue of Federal Domestic Assistance Democracy Blvd., Ste. 710, Bethesda, MD Program Nos. 93.855, Allergy, Immunology, 20892, (301) 594–5966, [email protected]. and Transplantation Research; 93.856, (Catalogue of Federal Domestic Assistance DEPARTMENT OF HEALTH AND Microbiology and Infectious Diseases Program Nos. 93.361, Nursing Research, Research, National Institutes of Health, HHS) National Institutes of Health, HHS) HUMAN SERVICES Dated: May 20, 2020. Dated: May 20, 2020. National Institutes of Health Tyeshia M. Roberson, Miguelina Perez, Program Analyst, Office of Federal Advisory Program Analyst, Office of Federal Advisory National Institute of Allergy and Committee Policy. Committee Policy. Infectious Diseases; Notice of Closed [FR Doc. 2020–11273 Filed 5–26–20; 8:45 am] [FR Doc. 2020–11277 Filed 5–26–20; 8:45 am] Meeting BILLING CODE 4140–01–P BILLING CODE 4140–01–P Pursuant to section 10(d) of the Federal Advisory Committee Act, as DEPARTMENT OF HEALTH AND DEPARTMENT OF HEALTH AND amended, notice is hereby given of the HUMAN SERVICES HUMAN SERVICES following meeting. The meeting will be closed to the National Institutes of Health National Institutes of Health public in accordance with the provisions set forth in sections National Institute of Nursing Research; National Center for Advancing 552b(c)(4) and 552b(c)(6), Title 5 U.S.C., Notice of Closed Meetings Translational Sciences; Notice of as amended. The grant applications and Closed Meeting Pursuant to section 10(d) of the the discussions could disclose Federal Advisory Committee Act, as Pursuant to section 10(d) of the confidential trade secrets or commercial amended, notice is hereby given of the Federal Advisory Committee Act, as property such as patentable material, following meetings. amended, notice is hereby given of the and personal information concerning The meetings will be closed to the following meeting. individuals associated with the grant public in accordance with the The meeting will be closed to the applications, the disclosure of which provisions set forth in sections public in accordance with the would constitute a clearly unwarranted 552b(c)(4) and 552b(c)(6), Title 5 U.S.C., provisions set forth in sections invasion of personal privacy. as amended. The grant applications and 552b(c)(4) and 552b(c)(6), Title 5 U.S.C., Name of Committee: National Institute of the discussions could disclose as amended. The grant applications and Allergy and Infectious Diseases Special confidential trade secrets or commercial the discussions could disclose Emphasis Panel; Emergency Awards: Rapid property such as patentable material, confidential trade secrets or commercial Investigation of Severe Acute Respiratory

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Syndrome Coronavirus 2 (SARS–CoV–2) and Contact Person: Janice B. Allen, Ph.D., Environmental Health Hazards; 93.114, Coronavirus Disease 2019 (COVID–19). Scientific Review Officer, Scientific Review Applied Toxicological Research and Testing, Date: June 9, 2020. Branch, Division of Extramural Research and National Institutes of Health, HHS) Time: 11:00 a.m. to 4:30 p.m. Training, National Institute of Environmental Dated: May 20, 2020. Agenda: To review and evaluate grant Health Sciences, P.O. Box 12233, MD EC–30/ applications. Room 3170 B, Research Triangle Park, NC Tyeshia M. Roberson, Place: National Institute of Allergy and 27709, (919) 541–7556, [email protected]. Program Analyst, Office of Federal Advisory Infectious Diseases, National Institutes of Name of Committee: National Institute of Committee Policy. Health, 5601 Fishers Lane, Room 3G69, Environmental Health Sciences Special [FR Doc. 2020–11276 Filed 5–26–20; 8:45 am] Rockville, MD 20892, (Virtual Meeting). Emphasis Panel: Review of Outstanding New BILLING CODE 4140–01–P Contact Person: John C. Pugh, Ph.D., Environmental Scientist Program. Scientific Review Officer, Center for Date: June 15, 2020. Scientific Review, National Institutes of Time: 8:30 a.m. to 5:00 p.m. DEPARTMENT OF HOMELAND Health, 6701 Rockledge Drive, Room 1206, Agenda: To review and evaluate grant Bethesda, MD 20892, (301) 435–2398, applications. SECURITY [email protected]. Place: National Institute of Environmental Coast Guard This notice is being published less than 15 Health Sciences, Keystone Building, 530 days prior to the meeting due to the timing Davis Drive, Durham, NC 27709 (Virtual [Docket No. USCG–2019–0346] limitations imposed by the review and Meeting). funding cycle. Contact Person: Laura A. Thomas, Ph.D., Navigation and Vessel Inspection (Catalogue of Federal Domestic Assistance Scientific Review Officer, Scientific Review Circular 01–16 Change 2—Use of Program Nos. 93.855, Allergy, Immunology, Branch, Division of Extramural Research and Electronic Charts and Publications in and Transplantation Research; 93.856, Training, National Institute of Environmental Lieu of Paper Charts, Maps and Health Sciences, Research Triangle Park, NC Microbiology and Infectious Diseases Publications Research, National Institutes of Health, HHS) 27709, 919–541–2824, laura.thomas@ nih.gov. AGENCY: Coast Guard, DHS. Dated: May 20, 2020. Name of Committee: National Institute of ACTION: Notice of availability. Tyeshia M. Roberson, Environmental Health Sciences Special Program Analyst, Office of Federal Advisory Emphasis Panel: Mentored Career Award SUMMARY: The Coast Guard announces Committee Policy. (K01 and K23). the availability of the Navigation and [FR Doc. 2020–11274 Filed 5–26–20; 8:45 am] Date: June 16, 2020. Vessel Inspection Circular (NVIC) 01–16 Time: 1:00 p.m. to 2:00 p.m. BILLING CODE 4140–01–P Change 2 issued May 21, 2020, together Agenda: To review and evaluate grant applications. with a Deregulatory Savings Analysis. Place: National Institute of Environmental The NVIC 01–16 Change 2 allows for DEPARTMENT OF HEALTH AND Health Sciences, Keystone Building, 530 U.S.-flagged vessels to use previously HUMAN SERVICES Davis Drive, Durham, NC 27709, (Telephone downloaded, electronic copies of Inland Conference Call). Navigation Rules and Vessel Traffic National Institutes of Health Contact Person: Varsha Shukla, Ph.D., Service Rules, and to access voyage Scientific Review Branch, Division of planning navigation publications National Institute of Environmental Extramural Research and Training, National Health Sciences; Notice of Closed electronically, including through Institute of Environmental Health Science, underway connectivity, to meet Meetings 530 Davis Drive, Keystone Building, Room 3094, Durham, NC 27713, (984) 287–3288, domestic carriage and International Pursuant to section 10(d) of the [email protected]. Convention for the Safety of Life at Sea Federal Advisory Committee Act, as Name of Committee: National Institute of certification requirements. amended, notice is hereby given of the Environmental Health Sciences Special DATES: The NVIC 01–16 Change 2 was following meetings. Emphasis Panel: Applications on issued May 21, 2020. The meetings will be closed to the Implementing Genetic Diversity/Variants in ADDRESSES: To view NVIC 01–16 High Throughput Toxicity Testing (R43/R44). Change 2, as well as other documents public in accordance with the Date: June 18, 2020. provisions set forth in sections mentioned in this notice as being Time: 9:30 a.m. to 2:30 p.m. available in the docket, please search for 552b(c)(4) and 552b(c)(6), Title 5 U.S.C., Agenda: To review and evaluate grant as amended. The grant applications and applications. docket number USCG–2019–0346 on the the discussions could disclose Place: National Institute of Environmental Federal eRulemaking Portal at https:// confidential trade secrets or commercial Health Sciences, Keystone Building, 530 www.regulations.gov. property such as patentable material, Davis Drive, Durham, NC 27709 (Virtual FOR FURTHER INFORMATION CONTACT: and personal information concerning Meeting). Please address questions or feedback individuals associated with the grant Contact Person: Leroy Worth, Ph.D., concerning this policy to Lieutenant Scientific Review Officer, Scientific Review applications, the disclosure of which Branch, Division of Extramural Research and Commander W. Christian Adams, Office would constitute a clearly unwarranted Training, Nat. Institute of Environmental of Navigation Systems, Coast Guard; invasion of personal privacy. Health Sciences, P.O. Box 12233, MD EC–30/ telephone 202–372–1565, email cgnav@ Name of Committee: National Institute of Room 3171, Research Triangle Park, NC uscg.mil. Environmental Health Sciences Special 27709, (919) 541–0670, [email protected]. SUPPLEMENTARY INFORMATION: Emphasis Panel: Exposures and COVID–19 (Catalogue of Federal Domestic Assistance Time-Sensitive Research. Program Nos. 93.115, Biometry and Risk I. Abbreviations Date: June 10, 2020. Estimation—Health Risks from CFR Code of Federal Regulations Time: 11:30 a.m. to 3:30 p.m. Environmental Exposures; 93.142, NIEHS FR Federal Register Agenda: To review and evaluate grant Hazardous Waste Worker Health and Safety MARPOL International Convention for the applications. Training; 93.143, NIEHS Superfund Prevention of Pollution from Ships Place: National Institute of Environmental Hazardous Substances—Basic Research and NVIC Navigation and Vessel Inspection Health Sciences, Keystone Building, 530 Education; 93.894, Resources and Manpower Circular Davis Drive, Durham, NC 27709 (Virtual Development in the Environmental Health SOLAS International Convention for the Meeting). Sciences; 93.113, Biological Response to Safety of Life at Sea

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VTS Vessel Traffic Service are designated as ‘‘ready reference’’ in programs. For this reason, the Coast II. Background 33 CFR 83.01(g) and 161.4, the mariner Guard did not revise the NVIC Change must be able to display ready reference 2 in response to this comment. Navigation publications are a current electronic editions on their However, we are forwarding the principal source of voyage planning electronic device without internet recommendations regarding courses on information. Mariners use tide tables, connectivity by producing a previously the use of electronic publications to the the United States Coast Pilot, local downloaded copy. notices to mariners, and other Coast Guard’s Office of Merchant information sources to access relevant III. Summary of Public Comments and Mariner Credentialing for their information for a particular transit. Changes consideration. Since at least 2010, the Coast Guard has On September 20, 2019, the Coast Ready reference requirements: Two recognized the carriage of certain Guard published a Notice of Availability commenters raised concerns about the navigation publications electronically of Navigation and Vessel Inspection NVIC interpreting the ‘‘ready reference’’ on U.S.-flagged vessels as meeting U.S. Circular 01–16 Change 2—Use of requirements of the CFR for certain domestic regulations and International Electronic Charts and Publications in publications as meaning displayable Convention for the Safety of Life at Sea Lieu of Paper Charts, Maps and within 2 minutes. One of the (SOLAS) certificate requirements. This Publications (84 FR 49545) that sought commenters believed it was arbitrary is an acceptance of common industry public comments on any concerns and could lead to unwarranted penalties practice. related to these proposed policy changes for mariners during the Coast Guard’s In response to recommendations from and the supporting economic analysis. marine safety inspections and the Navigation Safety Advisory Council After the public comment period closed boardings. The commenter and the public, the Coast Guard is on November 4, 2019, the Coast Guard recommended that Section 4 of NVIC updating its policy on electronic reviewed and analyzed the comments 01–16 Change 2 Memo be amended to carriage of the Inland Navigation Rules, contained in the six public submissions Vessel Traffic Service (VTS) Rules, and received. Below we summarize and read, ‘‘To be eligible for the electronic navigation publications in general. respond to these public comments. charts and publications equivalency Currently, the Coast Guard, the National Subchapter T inspection checklist: under this NVIC, mariners must be able Oceanic and Atmospheric One commenter suggested that we to access the Inland Navigation Rules Administration, and the National amend the NVIC to address carriage of via the internet or produce a Geospatial-Intelligence Agency provide 46 CFR parts 166 to 199 in electronic or downloaded copy on their electronic marine safety information in an updated paper version because a subchapter T device within a reasonable amount of electronic format, some of which is inspection checklist recommends that time of the request of the boarding graphical and geographically selectable. those parts be carried on board. officer or marine inspector under the Electronic devices (both hardware and Although 46 CFR parts 166 to 199 may given circumstances.’’ In addition, the software) have improved such that a be carried on board in electronic or commenter recommended that Section mariner can efficiently access paper versions in response to the F.1 of Enclosure (2) to NVIC 01–16 also navigation publications when needed. checklist recommendations, this NVIC be revised to read, ‘‘For publications Furthermore, the Coast Guard Change 2 is meant to address the stored or accessed electronically and recognizes that the maritime industry carriage of navigation-related which must be available for ready and mariners in general have made publications that are required by certain reference, the publications must be substantial investments to ensure parts of CFR titles 33 and 46 to be displayable within a reasonable amount vessels maintain internet connectivity, carried on board. Since 46 CFR parts of time under the given circumstances.’’ even while underway. Because mariners 166 through 199 are not required to be use certain navigation publications carried on board, they are not addressed We disagree with changing the primarily for voyage planning purposes, in this NVIC. The Coast Guard did not standard to being able to display the the Coast Guard recognizes the revise the NVIC Change 2 in response to publication within a reasonable amount practicality of accessing required this comment. of time. Section 83.01 of 33 CFR navigation information via the internet Training courses on use of electronic requires that the Inland Navigation on an as-needed basis, versus keeping a publications: The same commenter Rules be carried as ‘‘ready reference’’ on publication or extract onboard. To suggested that the Coast Guard address board each self-propelled vessel 12 encourage the use of electronic voyage mariner credentialing in the NVIC meters or more in length. Similarly, 33 planning products, the Coast Guard is Change 2, and, specifically, recommend CFR 161.4 requires each VTS user to providing the option for vessels to meet training courses and programs that are carry on board and maintain for ready certain publication carriage permitted and encouraged to train reference a copy of the VTS Rules. requirements via internet access. students in the use of electronic Practical use and reference to the Inland Therefore, we are revising Navigation publications. Another commenter Navigation Rules and VTS Rules while and Vessel Inspection Circular (NVIC) recommended that approved mariner underway may be directly related to a 01–16 Change 1 and issuing Change 2 to credentialing courses and programs be situation with vessels meeting, as well allow publications required by the Code permitted to train students in the use of as navigation or communication of Federal Regulations (CFR) Title 33 electronic publications, including the requirements within VTS areas. A delay (parts 83, 161, and 164) and Title 46 applicable CFR sections. The scope and (parts 26, 28, 78, 97, 109, 121, 130, 140, intent of this NVIC Change 2 is to in accessing these rules is a safety 184, and 196), and the SOLAS Chapter provide voluntary equivalency for the concern. For this reason, we cannot V Regulation 27 to be carried purposes of carriage requirements amend the standard to ‘‘within a electronically, with the majority of between paper and electronic charts and reasonable amount of time.’’ However, publications accessed via web services. publications required for navigation. It we are amending NVIC 01–16 Change 2 However, if a mariner chooses to use an is not meant to prescribe the use of to require that, if an electronic version electronic version of the Inland certain courses or programs, or the is to be used, those publications Navigation Rules and VTS Rules, which content of maritime courses and designated as ‘‘ready reference’’ be

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previously downloaded so as to be Navigation Rules and VTS Rules September 2019 initial notice of accessible without internet access.1 required for navigation. Vessel operators availability of NVIC 01–16 Change 2 Without the traditional requirements may continue to meet carriage that identified and examined the of having a paper copy on board a requirements for all publications, potential costs and cost savings vessel, the proposed 2-minute standard including VTS Rules and the Inland associated with implementing the new was intended to set a reasonable limit Navigation Rules, in the traditional equivalency determination for carriage. on how ‘‘ready reference’’ could be fashion by maintaining a paper (hard The Coast Guard received no comments interpreted for an electronic version that copy) reference. on this analysis, but we did receive comes from a computer drive or the Publication subscription service: comments on the NVIC that caused us internet. The proposed time standard Another commenter suggested that his to change our ready reference was also meant to reduce the inherent company could sell a specific equivalency standard. Changing this and unavoidable variation which results subscription service that provides up-to- standard impacts the estimated cost from marine inspections being date electronic versions of all the savings. Additionally, the Coast Guard conducted by many different inspectors publications required for the purpose of identified typographical and other with a variety of backgrounds and carriage, but they were unable to obtain grammatical errors that have been experience. We have not set such a Coast Guard approval for this service at corrected in the final version along with specific time duration standard for the time it was originally proposed. The updating the cost savings estimates paper copies in 33 CFR 83.01 or 161.4, Coast Guard does not require the use of based on the changes to the final notice. and, if we are to introduce such a any fee-based service to access these This analysis is available in the docket, standard for the electronic equivalent, rules and publications. Nor does the where indicated under the ADDRESSES that would best be done by amending Coast Guard prohibit the establishment portion of this document. those regulations. If a maximum time of fee-based services to aid with the carriage of publications. However, all V. Public Availability of NVIC 01–16 period is to be established to access Change 2 ‘‘ready reference’’ publications, it publications required for carriage under should apply equally whether the rules the CFR titles referenced by this NVIC A version of NVIC 01–16 Change 2 are viewed on a printed page or an are available free of charge from their with an issue date of May 21, 2020, will electronic screen. respective governmental agencies’ be placed in the docket for this notice. In terms of the time it takes to display public websites. Also, NVIC 01–16 Change 2 will be an electronic version of the publication, Citing an example of issues his located on the following Commandant the ‘‘ready reference’’ standard applies company encountered relating to website: https://www.dco.uscg.mil/Our- to an electronic version as if it were a providing printed oil record books, the Organization/NVIC/. This version paper version of the publication on a same commenter stated that there is a contains the NVIC’s enclosures— vessel. In consideration of the decision need for the Coast Guard to clearly state Enclosure (1), Equivalency to allow ‘‘carriage via internet access,’’ what it wants with respect to this NVIC determination for ‘‘Marine Charts,’’ the Coast Guard recognizes that many of Change 2. We believe that the NVIC 01– ‘‘Charts,’’ or ‘‘Maps;’’ ‘‘Publications;’’ the navigation publications required to 16 Change 2 policy is very clearly and navigation functions; and Enclosure be carried are used primarily for voyage written, so that companies seeking to (2), Guidelines for inspecting and using planning. These publications must be offer products to enable mariners to use electronic charts and publications. current and accessible, but not ready electronic charts and publications, as Dated: May 21, 2020. reference. well as Coast Guard inspectors, will R.V. Timme, understand exactly what is required to Depending on vessel heading, masts Rear Admiral, U.S. Coast Guard, Assistant or other topside obstructions may block meet NVIC 01–16 Change 2 equivalency Commandant for Prevention Policy. standards. Regarding the commenter’s antennas from receiving a signal. [FR Doc. 2020–11363 Filed 5–26–20; 8:45 am] example, we note that oil record books, Additionally, connectivity may be BILLING CODE 9110–04–P intermittent or unavailable for short which are required under the durations of a voyage. This temporary International Convention for the unavailability may not interfere with Prevention of Pollution from Ships DEPARTMENT OF HOMELAND voyage planning activities, but even (MARPOL) Annex I, and 33 CFR part SECURITY brief periods of unavailability could 151, are outside the scope of this NVIC. result in an unacceptable delay in The Coast Guard did not revise the Coast Guard NVIC Change 2 in response to this accessing the Inland Navigation Rules [Docket No. USCG–2019–0877] and VTS Rules that are required to be comment. ready reference. Maintaining Support for proposed action: Two National Merchant Mariner Medical downloaded copies will also ensure other commenters were supportive of Advisory Committee; Initial Solicitation continuous access while maneuvering the proposed NVIC announced in for Members through close quarters situations when September 2019 and of allowing certain AGENCY: these ready reference publications may navigation publications to be accessed U.S. Coast Guard, DHS. be most needed. electronically. ACTION: Request for applications. The Coast Guard appreciates all the It should be noted that NVIC 01–16 comments received. We will continue to SUMMARY: The Coast Guard is requesting Change 2 provides a voluntary study this issue in light of the comments applications from persons interested in equivalency for the purposes of carriage received and our experience with serving as a member of the National requirements between paper and mariners’ implementation of this policy Merchant Mariner Medical Advisory electronic charts, and between paper before issuing other notices or policy Committee (‘‘Committee’’). This recently and electronic versions of the Inland letters on this matter. established Committee advises the Secretary of the Department of 1 This was the only substantive change to NVIC IV. Cost Savings Analysis 01–16 Change 2 we made from the version we Homeland Security on matters relating posted in the docket when we invited comments in The Coast Guard prepared a to: Medical certification determinations September 2019. Deregulatory Savings Analysis for the for the issuance of licenses, certification

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of registry, and merchant mariners’ examiner education; and (4) medical Federal Officer of the National Merchant documents with respect to merchant research. Mariner Medical Advisory Committee mariners; medical standards and The Committee is required to hold via one of the transmittal methods in the guidelines for the physical meetings at least once a year in ADDRESSES section by the deadline in qualifications of operators of accordance with 46 U.S.C. 15109(a). We the DATES section of this notice. If you commercial vessels; medical examiner expect the Committee to meet at least send your application to us via email, education; and medical research. Please twice a year, but it may meet more we will send you an email confirming read this notice for a description of 14 frequently. The meetings are generally receipt of your application. held in cities that have high Committee positions we are seeking to Dated: May 20, 2020. fill. concentrations of maritime personnel and related marine industry businesses. Jeffrey G. Lantz, DATES: Completed application should All members serve at their own Director of Commercial Regulations and reach the Coast Guard on or before July expense and receive no salary or other Standards. 27, 2020. compensation from the Federal [FR Doc. 2020–11298 Filed 5–26–20; 8:45 am] ADDRESSES: Applicants should send a Government. Members may be BILLING CODE 9110–04–P cover letter expressing interest in an reimbursed, however, for travel and per appointment to the National Merchant diem in accordance with Federal Travel Mariner Medical Advisory Committee Regulations. DEPARTMENT OF HOMELAND and a resume detailing their experience. Under 46 U.S.C. 15109(f) (6), SECURITY We will not accept a biography. membership terms expire on December Coast Guard Applications should be submitted via 31st of the third full year after the one of the following methods: effective date of appointment. The [Docket No. USCG–2019–0131] • By Email (preferred): Secretary may require an individual to [email protected]. Subject have passed an appropriate security Port Access Route Study: The Areas Line: N–MEDMAC background examination before Offshore of Massachusetts and Rhode • By Fax: 202–372–4908; ATTN: appointment to the Committee, 46 Island Michael Lalor, Alternate Designated U.S.C. 15109(f) (4). AGENCY: Coast Guard, DHS. Federal Officer; or In this initial solicitation for ACTION: Notice of availability. • By Mail: Michael Lalor, Alternate Committee members, we will consider Designated Federal Officer, applications for all positions, which SUMMARY: The United States Coast Commandant (CG–MMC–2), U.S. Coast include: Guard (USCG) announces the Guard Stop 7509, 2703 Martin Luther • Nine health-care professionals who completion of The Areas Offshore of King Jr Ave SE, Washington, DC 20593– have particular expertise, knowledge, Massachusetts and Rhode Island Port 7509 and experience regarding the medical Access Route Study. The study focused FOR FURTHER INFORMATION CONTACT: examinations of merchant mariners or on the seven adjacent leased areas of the Michael Lalor, Alternate Designated occupational medicine; and outer continental shelf south of Martha’s • Five professional mariners who Federal Officer of the Merchant Mariner Vineyard, Massachusetts, and east of have particular expertise, knowledge, Medical Advisory Committee; Rhode Island that together constitute the and experience in occupational Telephone 202–372–2357; or Email at Massachusetts/Rhode Island Wind requirements for mariners. [email protected]. Energy Area (MA/RI WEA). The study Registered lobbyists are not eligible to was conducted to (1) determine what, if SUPPLEMENTARY INFORMATION: The serve on Federal Advisory Committees any, navigational safety concerns exist National Merchant Mariner Medical in an individual capacity. See ‘‘Revised with vessel transits in the study area; (2) Advisory Committee is a Federal Guidance on Appointment of Lobbyists determine whether to recommend advisory committee. It will operate to Federal Advisory Committees, Boards changes to enhance navigational safety under the provisions of the Federal and Commissions’’ (79 FR 47482, by examining existing shipping routes Advisory Committee Act, 5 U.S.C August 13, 2014). Registered lobbyists and waterway uses as any or all of the Appendix 2, and the administrative are ‘‘lobbyists,’’ as defined in Title 2 lease areas within the MA/RI WEA are provisions in § 601 of the Frank U.S.C. 1602, who are required by Title partially or fully developed as wind LoBiondo Coast Guard Authorization 2 U.S.C. 1603 to register with the farms; and (3) to evaluate the need for Act of 2018 (specifically, 46 U.S.C. Secretary of the Senate and the Clerk of establishing vessel routing measures. 15109). the House of Representatives. This notice summarizes the study’s The Committee was established on The Department of Homeland recommendations. December 4, 2019, by the Frank Security does not discriminate in the LoBiondo Coast Guard Authorization selection of Committee members based FOR FURTHER INFORMATION CONTACT: If Act of 2018, which added § 15104, on race, color, religion, sex, national you have questions on this notice, National Merchant Mariner Medical origin, political affiliation, sexual contact Mr. Craig Lapiejko, Waterways Advisory Committee, to Title 46 of the orientation, gender identity, marital Management at First Coast Guard U.S. Code (46 U.S.C. 15104). The status, disabilities and genetic District, telephone (617) 223–8351, Committee will advise the Secretary of information, age, membership in an email [email protected]. Homeland Security on matters relating employee organization, or any other I. Table of Abbreviations to (1) medical certification non-merit factor. The Department of determinations for the issuance of Homeland Security strives to achieve a AIS Automatic Identification System licenses, certificates of registry, and widely diverse candidate pool for all of BOEM Bureau of Ocean Energy Management merchant mariners’ documents with its recruitment selections. CFR Code of Federal Regulations respect to merchant mariners; (2) If you are interested in applying to DHS Department of Homeland Security medical standards and guidelines for become a member of the Committee, FR Federal Register the physical qualifications of operators send your cover letter and resume to Mr. MARIPARS Massachusetts and Rhode of commercial vessels; (3) medical Michael Lalor, Alternate Designated Island Port Access Route Study

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MA/RI WEA Massachusetts/Rhode Island public meetings (in Massachusetts, included announcement via a Marine Wind Energy Area Rhode Island, and New York) to receive Safety Information Bulletin (MSIB), NEPA National Environmental Policy Act public input. The USCG received 30 publication in the Local Notice to NM Nautical Mile NMFS National Marine Fisheries Service comments in response to our Federal Mariners (LNM), and Twitter posts. All OCS Outer Continental Shelf Register Notice, public meetings and comments and supporting documents PARS Port Access Route Study other outreach efforts which included are available in a public docket and can PWSA Ports and Waterways Safety Act announcement via a Marine Safety be viewed at http:// TSS Traffic Separation Scheme Information Bulletin (MSIB), www.regulations.gov. In the ‘‘Search’’ U.S. United States publication in the Local Notice to box insert ‘‘USCG–2019–0131’’ and U.S.C. United States Code Mariners (LNM), and Twitter posts. click ‘‘Search.’’ Click the ‘‘Open Docket USCG United States Coast Guard Folder’’ in the ‘‘Actions’’ column. WEA Wind Energy Area On January 29, 2020, we published a WTG Wind Turbine Generator Notice of availability of draft report; Comments have been summarized in request for comments entitled ‘‘Port section III. II. Background and Purpose Access Route Study (PARS): The Areas What is the study area? When did the USCG conduct this Port Offshore of Massachusetts and Rhode Access Route Study (PARS)? Island’’ in the Federal Register (85 FR The study area is described as an area 5222) announcing the availability of the bounded by a line connecting the We conducted this PARS following following geographic positions: our announcement of the PARS in a draft version of the study report. • ° ′ ° ′ notice published in the Federal Register During the 45-day public comment 41 20 N, 070 00 W • ° ′ ° ′ on March 26, 2019 (84 FR 11314). period, the USCG received 48 comments 40 35 N, 070 00 W There was a 60-day public comment in response to our Federal Register • 40°35′ N, 071°15′ W period, and USCG convened three Notice and other outreach which • 41°20′ N, 071°15′ W

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Why did the USCG conduct this PARS? which included participation by the that a PARS should be conducted to The topic of safe navigation routes to USCG, other federal, state, and local determine the best possible alternative facilitate vessel transits through the agencies, fishing industry for potentially seven distinct offshore MA/RI WEA has been considered since representatives, and myriad renewable energy installations (‘‘wind at least May of 2018, when the USCG stakeholders, various vessel transit farms’’) which could be constructed, first invited developers to discuss the layout plans were proposed. After a each with its own number, size, type of issue. At various subsequent meetings consensus among all stakeholders could wind turbines, and distinct turbine throughout southeastern New England, not be reached, the USCG concluded layout.

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PARS are conducted anytime the with a request for additional studies, Radar Interference and Additional USCG considers a need to recommend and cost benefit analysis or economic Studies routing changes, within the territorial analysis. The substance of those Some commenters expressed their seas, for any port. The Ports and comments is covered below. Other concerns about possible radar Waterways Safety Act (PWSA) requires comments received are more interference while transiting within the the USCG to conduct a study before appropriate for the offshore wind NEPA WEA and said the Coast Guard should establishing new or adjusting existing process as USCG provides BOEM with conduct additional studies before fairways or TSS. U.S. waterways a navigation safety recommendation for making final recommendations for the support multiple uses, such as each project. Comments not related to MARIPARS. There are, however, no commercial shipping, tug and barge the subject of the draft report are not wind farms in U.S. waters with a operations, commercial and recreational covered in this notice. sufficient number and arrangement of fishing, research vessels, offshore turbines to conduct such a study. As the support vessels, military vessels, and Navigation Corridors Block Island wind farm is a single line aquaculture apparatus. A PARS is a Various comments were received of five turbines spaced approximately study, not a rulemaking. The USCG does concerning navigation corridors. 0.5 NM apart, it does not provide the not plan a related rulemaking provided Although the majority of commenters turbine array needed to conduct such a that the MA/RI WEA turbine layout is agreed with our recommendation for a study. The USCG has reviewed all developed along a standard and uniform standard and uniform grid pattern with available studies on radar interference grid pattern. 1 NM spacing between WTGs across the and found that although these studies How did the USCG conduct this PARS? entire WEA, others disagreed and show that structures may have some supported larger 2 NM to 4 NM effect upon radar, as discussed in the The PARS was conducted in corridors to serve as clear lanes for alignment with guidance outlined in MARIPARS report, they do not render vessels to transit within the WEA. radar inoperable and do not inform USCG Commandant Instruction Although these larger navigation 16003.2B, Marine Planning to Operate planning decisions about turbine corridors may appear to provide more arrangement or spacing. and Maintain the Marine area for navigation, they actually Transportation System (MTS) and Coast Guard vessels and aircraft that provide far less area than the numerous will operate in the WEA also rely upon Implement National Policy which is corridors that result from the available in the docket or see https:// radar for safe navigation, collision recommended array and spacing. avoidance and maritime situational media.defense.gov/2017/Mar/15/ Additionally, the project developers 2001716995/-1/-1/0/CI_16003_2A.PDF. awareness. Although the Coast Guard is have made clear that larger corridors, confident that by following principles of What is the goal of the study? even though fewer in number, would prudent seamanship and utilizing all The goal of the study is to enhance result in reduced WTG spacing for the available bridge resources, including navigational safety in the study area by WEA. Because the reduced turbine AIS, vessels can safely navigate through examining existing shipping routes and spacing makes navigation more the WEA in most weather conditions, it waterway uses. To accomplish this goal, challenging, most traffic would then be will continue to evaluate operational the USCG has undertaken measures to funneled into the corridors thereby effectiveness within wind farms as they (1) determine what, if any, navigational increasing traffic density and risks for are being developed. Additionally, the safety concerns exist with vessel transits vessel interaction. Furthermore, the USCG will remain a participating in the study area; (2) determine whether recommended standard and uniform member of the Wind Turbine Radar to recommend changes to enhance grid pattern provide sufficient space for Interference Working Group which will navigational safety by examining certain vessels that fish in the WEA to continue to evaluate WTG impacts to existing shipping routes and waterway continue fishing after the wind farms marine radar and will recommend uses as any or all of the lease areas are constructed. If the WEA provided mitigation strategies through the BOEM within the MA/RI WEA are partially or several larger corridors as some leasing process as necessary. fully developed as wind farms; and (3) commenters proposed, the reduced turbine spacing would largely preclude Cost Benefit Analysis or Economic evaluate the need for establishing vessel Analysis routing measures. fishing in the WEA, an area of almost 1400 square miles. The USCG received comments III. Discussion of Comments For these reasons, the USCG has requesting we conduct a cost benefit A total of 48 comments on the draft determined that if the MA/RI WEA analysis or economic analysis. The version of the final report were turbine layout is developed along a purpose of the MARIPARS was to submitted by representatives of the standard and uniform grid pattern, determine what routing measures, if maritime community, wind energy formal or informal vessel routing any, may be necessary for navigation developers, non-governmental measures would not be required as such safety should any or all of the lease organizations, federal and state a grid pattern will result in the areas within the MA/RI WEA become governmental agencies, and private functional equivalent of numerous partially or fully developed as wind citizens. Twenty three of the comments navigation corridors that can safety farms. In conducting the MARIPARS, are considered to be in support of the accommodate both transits through and the USCG considered traditional uses of recommendations, while sixteen of the fishing within the WEA. While these the waterway and related economic comments were considered to be navigation corridors would be smaller impacts, as well as the economic opposed to the recommendations and than those suggested by some impacts related to its recommendations nine of the comments were considered commenters, the USCG believes they on routing measures on wind farm to be neutral. should be sufficient to maintain development in the MA/RI WEA. While Comments covered many topics, but a navigational safety and provide vessels these economic impacts were addressed number of commenters with specific with multiple straight-line options to in some areas of the MARIPARS, the concerns focused their comments on transit safely throughout the MA/RI purpose of such limited examination navigation corridors, radar interference WEA. was twofold: (1) To address how

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economic issues might impact behaviors caution, ensure proper watch and assess Dated: May 14, 2020. with regards to safe navigation and (2) all risk factors. Offshore renewable A.J. Tiongson, to find a balanced solution for energy installations present new Rear Admiral, U.S. Coast Guard, Commander, navigation concerns that addresses both challenges to safe navigation, but proper First Coast Guard District. the proposed uses of the waterway and voyage planning and access to relevant [FR Doc. 2020–11262 Filed 5–26–20; 8:45 am] the traditional uses of the waterway. safety information should ensure that BILLING CODE 9110–04–P As MARIPARS is merely a study for safety is not compromised. the purpose of making In general, mariners transiting recommendations, and not a regulatory through this WEA should make a careful DEPARTMENT OF HOMELAND action through which the Coast Guard is assessment of all factors associated with SECURITY imposing a cost or other burden upon their voyage. These factors at a the public, the Coast Guard cannot U.S. Customs and Border Protection minimum should include; complete such a study at this time. If, [CBP Dec. 20–06] however, the Coast Guard were to later (1) The operator’s experience and determine that it should take regulatory condition with regard to fitness and rest. Western Hemisphere Travel Initiative: measures as a result of this study, it (2) The vessels characteristics, which Designation of an Approved Native would then evaluate the economic should include the size, American Tribal Card Issued by the aspects of the proposed regulatory maneuverability, and sea keeping Confederated Tribes of the Colville activity as part of the rulemaking ability. The overall reliable and Reservation as an Acceptable process. operational material condition of Document To Denote Identity and IV. Study Recommendations propulsion, steering, and navigational Citizenship for Entry in the United equipment. States at Land and Sea Ports of Entry The recommendations of this PARS are primarily based on the comments (3) Weather conditions—both current AGENCY: U.S. Customs and Border received to the docket, public outreach, and predicted including sea state and Protection, DHS. and consultation with other government visibility. ACTION: Notice. agencies. The MARIPARS evaluated (4) Voyage planning to include up-to- several concerns that resulted in the date information regarding the positions SUMMARY: This notice announces that following recommendations: of completed wind towers or wind the Commissioner of U.S. Customs and A. That the MA/RI WEA’s turbine towers under construction and their Border Protection is designating an layout be developed along a standard associated construction vessels. A great approved Native American tribal card and uniform grid pattern with at least deal of consideration should also be issued by the Confederated Tribes of the three lines of orientation and standard given to whether the transit will be Colville Reservation (‘‘Colville Tribes’’) spacing to accommodate vessel transits, conducted during day or night. to U.S. and Canadian citizens as an traditional fishing operations, and acceptable travel document for purposes search and rescue operations, V. Summary of Changes of the Western Hemisphere Travel throughout the MA/RI WEA. The Initiative. The approved card may be No substantive changes were made to used to denote identity and citizenship adoption of a standard and uniform grid the report as a result of the comment pattern through BOEM’s approval of Colville Tribes members entering the period. Only minor editorial changes United States from contiguous territory process will likely eliminate the need were made to the report. for the USCG to pursue formal or or adjacent islands at land and sea ports informal routing measures within the VI. Future Actions of entry. MA/RI WEA at this time. DATES: This designation will become 1. Lanes for vessel transit should be The USCG will continue to serve as a effective on May 27, 2020. oriented in a northwest to southeast NEPA cooperating agency to BOEM’s FOR FURTHER INFORMATION CONTACT: direction, 0.6 NM to 0.8 NM wide. This environmental review of each proposed Colleen Manaher, Executive Director, width will allow vessels the ability to project. In that role, the USCG will Planning, Program Analysis, and maneuver in accordance with the evaluate the navigational safety risks of Evaluation, Office of Field Operations, COLREGS while transiting through the each proposal on a case-by-case basis. U.S. Customs and Border Protection, via MA/RI WEA. The First Coast Guard District actively email at Colleen.M.Manaher@ 2. Lanes for commercial fishing monitors all waterways subject to its cbp.dhs.gov. vessels actively engaged in fishing jurisdiction to ensure navigation safety SUPPLEMENTARY INFORMATION: should be oriented in an east to west and will continue to monitor the areas direction, 1 NM wide. offshore of Massachusetts and Rhode Background 3. Lanes for USCG search and rescue Island for evolving conditions, which The Western Hemisphere Travel operations should be oriented in a north may require additional studies to ensure Initiative to south and east to west direction, 1 navigational safety and minimize NM wide. This will ensure two lines of impacts to USCG operations. Section 7209 of the Intelligence orientation for USCG helicopters to Reform and Terrorism Prevention Act of The final report is available for conduct search and rescue operations. 2004 (IRTPA), Public Law 108–458, as In the event that subsequent MA/RI viewing and download from the Federal amended, required the Secretary of WEA project proposals diverge from a Register docket at http:// Homeland Security (Secretary), in standard and uniform grid pattern www.regulations.gov or the USCG consultation with the Secretary of State, approved in previous projects, the Navigation Center website at https:// to develop and implement a plan to USCG will revisit the need for informal www.navcen.uscg.gov/?pageName= require U.S. citizens and individuals for and formal measures to preserve safe, PARSReports. whom documentation requirements efficient navigation and SAR operations. This notice is published under the have previously been waived under B. That mariners transiting in or near authority of 46 U.S.C. 70003, 70004 and section 212(d)(4)(B) of the Immigration the MA/RI WEA should use extra 5 U.S.C. 552(a). and Nationality Act (8 U.S.C.

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1182(d)(4)(B)) to present a passport or 212.1.2 Native American tribal cards are document by the Commissioner of CBP. other document or combination of also referenced in 8 CFR 235.1(b), which This designation was announced in a documents as the Secretary deems lists the documents U.S. citizens may notice published in the Federal Register sufficient to denote identity and use to establish identity and citizenship on June 9, 2011 (76 FR 33776). citizenship for all travel into the United when entering the United States. See 8 Subsequently, the Commissioner of CBP States. See 8 U.S.C. 1185 note. On April CFR 235.1(b)(7). announced the designation of several 3, 2008, the Department of Homeland The Secretary has delegated to the other Native American tribal cards as Security (DHS) and the Department of Commissioner of U.S. Customs and WHTI-compliant documents. See, e.g., State promulgated a joint final rule, Border Protection (CBP) the authority to the Native American tribal cards of the effective on June 1, 2009, that designate certain documents as Kootenai Tribe of Idaho, 77 FR 4822 implemented the plan known as the acceptable border crossing documents (January 31, 2012); the Seneca Nation of Western Hemisphere Travel Initiative for persons arriving in the United States Indians, 80 FR 40076 (July 13, 2015); the (WHTI) at U.S. land and sea ports of by land or sea from within the Western Hydaburg Cooperative Association of entry. See 73 FR 18384 (the WHTI Land Hemisphere, including certain United Alaska, 81 FR 33686 (May 27, 2016); and Sea Final Rule). The rule amended States Native American tribal cards. See and the Pokagon Band of Potawatomi various sections in the Code of Federal DHS Delegation Number 7105 (Revision Indians, 82 FR 42351 (September 7, Regulations (CFR), including 8 CFR 00), dated January 16, 2009. 2017). 212.0, 212.1, and 235.1. The WHTI Land Tribal Card Program Confederated Tribes of the Colville and Sea Final Rule specifies the Reservation WHTI-Compliant Native documents that U.S. citizens and The WHTI Land and Sea Final Rule American Tribal Card Program nonimmigrant aliens from Canada, allowed U.S. federally recognized Bermuda, and Mexico are required to Native American tribes to work with The Confederated Tribes of the CBP to enter into agreements to develop present when entering the United States Colville Reservation (‘‘Colville Tribes’’) tribal ID cards that can be designated as at land and sea ports of entry. have voluntarily established a program Under the WHTI Land and Sea Final acceptable to establish identity and to develop a WHTI-compliant Native Rule, one type of citizenship and citizenship when entering the United American tribal card that denotes identity document that may be States at land and sea ports of entry identity and U.S. or Canadian presented upon entry to the United from contiguous territory or adjacent citizenship. On May 21, 2013, CBP and States at land and sea ports of entry islands. CBP has been working with the Colville Tribes entered into a from contiguous territory or adjacent various U.S. federally recognized Native Memorandum of Agreement (MOA) to American tribes to facilitate the islands 1 is a Native American tribal develop, issue, test, and evaluate tribal development of such cards.3 As part of card that has been designated as an cards to be used for border crossing the process, CBP will enter into one or acceptable document to denote identity purposes. Pursuant to this MOA, the more agreements with a U.S. federally and citizenship by the Secretary, cards are issued to members of the recognized tribe that specify the pursuant to section 7209 of IRTPA. Colville Tribes who can establish requirements for developing and issuing Specifically, 8 CFR 235.1(e), as identity, tribal membership, and U.S. or WHTI-compliant Native American tribal amended by the WHTI Land and Sea Canadian citizenship. The cards cards, including a testing and auditing Final Rule, provides that upon incorporate physical security features process to ensure that the cards are designation by the Secretary of acceptable to CBP as well as facilitative produced and issued in accordance with technology allowing for electronic Homeland Security of a United States the terms of the agreements. qualifying tribal entity document as an validation by CBP of identity, After production of the cards in 4 acceptable document to denote identity accordance with the specified citizenship, and tribal membership. CBP has tested the cards developed by and citizenship for the purposes of requirements, and successful testing and entering the United States, Native auditing by CBP of the cards and the Colville Tribes pursuant to the Americans may be permitted to present program, the Secretary of Homeland above MOA and related agreements, and tribal cards upon entering or seeking Security or the Commissioner of CBP has performed an audit of the tribes’ admission to the United States may designate the Native American card program. On the basis of these tests according to the terms of the voluntary tribal card as an acceptable WHTI- and audit, CBP has determined that the agreement entered between the compliant document for the purpose of Native American tribal cards meet the Secretary of Homeland Security and the establishing identity and citizenship requirements of section 7209 of the tribe. It provides that the Secretary of when entering the United States by land IRTPA and are acceptable documents to Homeland Security will announce, by or sea from contiguous territory or denote identity and citizenship for publication of a notice in the Federal adjacent islands. Such designation will purposes of entering the United States at Register, documents designated under be announced by publication of a notice land and sea ports of entry from this paragraph. It further provides that contiguous territory or adjacent in the Federal Register. More 5 a list of the documents designated under information about WHTI-compliant islands. CBP’s continued acceptance of this section will also be made available documents is available at www.cbp.gov/ 4 CBP and the Colville Tribes entered into a to the public. travel. A United States qualifying tribal Service Level Agreement (SLA) on October 3, 2016, The Pascua Yaqui Tribe of Arizona concerning the technical requirements and support entity is defined as a tribe, band, or became the first Native American tribe for the production, issuance, and verification of the other group of Native Americans to have its Native American tribal card Native American tribal cards. CBP and the Colville formally recognized by the United designated as a WHTI-compliant Tribes also entered into an Interconnection Security States Government which agrees to meet Agreement in February 2016, with respect to individual and organizational security WHTI document standards. See 8 CFR 2 This definition applies to 8 CFR 212.1 and responsibilities for the protection and handling of 235.1. unclassified information. 1 ‘‘Adjacent islands’’ is defined in 8 CFR 212.0 as 3 The Native American tribal cards qualifying to 5 The Native American tribal card issued by the ‘‘Bermuda and the islands located in the Caribbean be a WHTI-compliant document for border crossing Colville Tribes may not, by itself, be used by Sea, except Cuba.’’ This definition applies to 8 CFR purposes are commonly referred to as ‘‘Enhanced Canadian citizen tribal members to establish that 212.1 and 235.1. Tribal Cards’’ or ‘‘ETCs.’’ Continued

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the Native American tribal cards as a (USCIS)–004 Systematic Alien Citizenship and Immigration Services, WHTI-compliant document is Verification for Entitlements (SAVE) 20 Massachusetts Avenue NW, conditional on compliance with the Program System of Records.’’ This Washington, DC 20529. For privacy MOA and related agreements. system of records allows DHS/USCIS to questions, please contact: Constantina Acceptance and use of the WHTI- collect and maintain records on Kozanas, (202) 343–1717, Privacy@ compliant Native American tribal cards applicants for public benefits, licenses, hq.dhs.gov, Chief Privacy Officer, is voluntary for tribe members. If an grants, governmental credentials, or Privacy Office, Department of Homeland individual is denied a WHTI-compliant other statutorily authorized purposes to Security, Washington, DC 20528–0655. Native American tribal card, he or she operate the fee-based SAVE. SAVE SUPPLEMENTARY INFORMATION: may still apply for a passport or other allows users agencies to confirm I. Background WHTI-compliant document. immigration and naturalized and certain In accordance with the Privacy Act of Designation derived citizen status information, in order for the user agencies to make 1974, 5 U.S.C. 552a, the Department of This notice announces that the decisions related to: Determine Homeland Security (DHS), U.S. Commissioner of CBP designates the eligibility for a Federal, state, tribal, or Citizenship and Immigration Services Native American tribal card issued by local public benefit; issue a license or (USCIS) proposes to modify and reissue the Colville Tribes in accordance with grant; issue a government credential; a current DHS system of records titled, the MOA and all related agreements conduct a background investigation; or ‘‘DHS/USCIS–004 Systematic Alien between the tribes and CBP as an for any other lawful purpose within the Verification for Entitlements Program acceptable WHTI-compliant document user agency’s jurisdiction. DHS/USCIS System of Records.’’ pursuant to section 7209 of the IRTPA is updating this system of records notice The Systematic Alien Verification for and 8 CFR 235.1(e). In accordance with to include updates and modifications to Entitlements (SAVE) Program is a fee- these provisions, the approved card, if the authority for maintenance of the based service designed to assist Federal, valid and lawfully obtained, may be system, the purpose of the system, state, tribal, and local government used to denote identity and U.S. or categories of individuals, categories of agencies, benefit-granting agencies, Canadian citizenship of Colville Tribes records, record source categories, private entities, institutions, and members for the purposes of entering routine uses, and contesting records licensing bureaus authorized by law in the United States from contiguous procedures to better reflect how USCIS determining citizenship and territory or adjacent islands at land and operates SAVE and data sharing efforts. immigration status for the purpose of sea ports of entry. Additionally, this notice includes non- granting benefits, licenses, and other lawful purposes. Uses of SAVE may Dated: May 21, 2020. substantive changes to simplify the include verification of citizenship and Mark A. Morgan, formatting and text of the previously published notice. This modified system immigration status (for naturalized and Acting Commissioner, U.S. Customs and certain derived citizens) when issuing Border Protection. will be included in DHS’s inventory of record systems. Social Security benefits, public health [FR Doc. 2020–11378 Filed 5–26–20; 8:45 am] care, Supplemental Nutrition Assistance DATES: BILLING CODE 9111–14–P Submit comments on or before Program (SNAP) benefits, Temporary June 26, 2020. This modified system Assistance for Needy Families (TANF), will be effective upon publication. New Medicaid, Children’s Health Insurance DEPARTMENT OF HOMELAND or modified routine uses will be Program (CHIP), conducting background SECURITY effective June 26, 2020. investigations, armed forces [Docket No. USCIS–2020–0014] ADDRESSES: You may submit comments, recruitment, REAL ID compliance, or identified by docket number USCIS– any other purpose authorized by law. Privacy Act of 1974; System of 2020–0014 by one of the following SAVE provides citizenship and Records methods: immigration status to the extent that • Federal e-Rulemaking Portal: http:// such confirmation is necessary to enable AGENCY: Department of Homeland www.regulations.gov. Follow the Federal, state, tribal, or local Security, U.S. Citizenship and instructions for submitting comments. government agencies to make decisions Immigration Services. • Fax: 202–343–4010. • related to: (1) Determining eligibility for ACTION: Notice of modified system of Mail: Constantina Kozanas, Chief a Federal, state, tribal, or local public records. Privacy Officer, Privacy Office, benefit; (2) issuing a license or grant; (3) Department of Homeland Security, issuing a government credential; (4) SUMMARY: In accordance with the Washington, DC 20528–0655. Privacy Act of 1974, the Department of conducting a background investigation; Instructions: All submissions received or (5) any other lawful purpose. SAVE Homeland Security (DHS) proposes to must include the agency name and modify and reissue a current DHS does not determine an applicant’s docket number USCIS–2020–0014. All eligibility for a specific benefit or system of records titled, ‘‘DHS/U.S. comments received will be posted Citizenship and Immigration Services license; only the benefit-granting agency without change to http:// can make that determination. www.regulations.gov, including any A typical SAVE verification involves they meet the requirements of section 289 of the personal information provided. Immigration and Nationality Act (INA) [8 U.S.C. a registered Federal, state, tribal, or local 1359]. INA § 289 provides that nothing in this title Docket: For access to the docket to government benefit or license granting shall be construed to affect the right of American read background documents or agency verifying the citizenship and Indians born in Canada to pass the borders of the comments received, go to http:// immigration status of an immigrant or United States, but such right shall extend only to www.regulations.gov. persons who possess at least 50 per centum of blood non-immigrant. The initial SAVE of the American Indian race. While the tribal card FOR FURTHER INFORMATION CONTACT: For response is derived from information may be used to establish a card holder’s identity for general questions, please contact: contained in a U.S. government-issued purposes of INA § 289, it cannot, by itself, serve as evidence of the card holder’s Canadian birth or that Donald K. Hawkins, (202) 272–8030, document, such as a Permanent he or she possesses at least 50% American Indian USCIS.PrivacyCompliance@ Resident Card (often referred to as a blood, as required by INA § 289. uscis.dhs.gov, Privacy Officer, U.S. Green Card) or Employment

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Authorization Document. Before a is provided to the benefit-granting rules and the Federal deeming and SAVE user agency can submit a query, agency, SAVE will request to receive the reimbursement rules. the user agency must collect certain benefit-granting agency’s final As part of this change, DHS/USCIS is information from the benefit or license adjudication determination of the updating this system of records (SORN) applicant’s immigration-related Federal means-tested public benefit. to cite the relevant legal authority to document. The verification process is DHS/USCIS is collecting information collect benefit determination document driven and requires the regarding actions that agencies information. DHS/USCIS is also adding document’s numeric identifier (e.g., adjudicating Federal means-tested new categories of records collected from Alien Number (A-Number)). The public benefits take to deem sponsor benefit-granting agencies relating to document presented by the individual income as part of applicant income for actions that agencies adjudicating determines the verification process. purposes of Federal means-tested Federal means-tested public benefits When a user agency submits a case, benefits eligibility 1 and to seek take to deem sponsor income as part of SAVE queries various DHS-accessed reimbursement from sponsors for the applicant income for purposes of databases for matching records. These value of benefits provided to sponsored Federal means-tested benefits eligibility databases consist of case management applicants. This information will and to seek reimbursement from systems used for adjudicating provide the Federal Government with sponsors for the value of benefits immigration benefits. If SAVE locates a greater visibility into whether and how provided to sponsored applicants. This record pertaining to the applicant in any benefit-granting agencies use the includes whether the benefit-granting of these DHS databases, SAVE displays sponsor and household member agency approved or denied the application for the means-tested public that data. The data displayed by SAVE information that SAVE provides for the depends on the user agency’s authority benefit; if the benefit-granting agency deeming and reimbursement processes. to use SAVE and the type of benefit denied the application, whether the provided by the user agency. If SAVE is With this information, DHS/USCIS denial was based upon the information unable to find a record pertaining to the plans to compile and make reports that SAVE provided in its response to applicant, it will request additional available to Federal means-tested public the citizenship and immigration status verification. The user agency may benefit agencies (i.e., Social Security verification request from the benefit- initiate the additional verification Administration, Department of Health granting agency; whether the benefit- procedure, which entails in-depth and Human Services (HHS)—Centers for granting agency deemed sponsor/ research in available records by USCIS Medicare and Medicaid Services, household member income and, if not, Status Verifiers Operations Branch to HHS—Administration for Children and the exception or reason for not doing so; confirm the applicant’s citizenship and Families, and U.S. Department of whether the benefit-granting agency sent immigration status. Agriculture—Food and Nutrition the sponsor a reimbursement request DHS/USCIS is publishing this Service) that perform oversight, letter; whether the sponsor complied modified system of records notice to monitoring, and compliance activities with his or her reimbursement make several changes for transparency regarding Federal deeming and obligation; and whether the benefit- and to describe new initiatives. reimbursement rules. These reports will granting agency conducted a collection Although SAVE provides citizenship consist of general statistics in addition action if the sponsor did not comply and immigration status information to to case-specific information, so that with his or her reimbursement approved and configured user agencies, Federal means-tested public benefit obligation. DHS/USCIS is also adding SAVE currently does not collect benefit oversight and administrative agencies Routine Use J for disclosure to a determination information. Where can see individual cases that did not Federal, state, tribal, or local SAVE provides immigrant sponsorship complete sponsor deeming and/or those government agency that oversees or information to user agencies for sponsor cases in which the benefit was not administers Federal means-tested public deeming and agency reimbursement provided due to deeming. These reports benefits for purposes of seeking processes governed by Section 213A of will also be made available to the reimbursement from sponsors for the the Immigration and Nationality Act Department of Justice and the value of benefits provided to sponsored (INA), 8 U.S.C. 1183a, and Department of Treasury, as necessary applicants, as well as reporting on implementing regulations at 8 CFR part and authorized by law, and in overall sponsor deeming and agency 213a, SAVE does not currently prompt coordination with the Federal means- reimbursement efforts to appropriate a response from those agencies as to tested public benefit agencies for administrative and oversight agencies. their use of that information in reimbursement activity. DHS/USCIS DHS/USCIS is also expanding the determining the benefit. will further provide access to relevant purpose of this system to include USCIS On May 23, 2019, President Trump reports to approved adjudicating SAVE bond management processes. Under issued a Presidential Memorandum user agencies to assist them in managing section 213 of the Immigration and (PM), Memorandum on Enforcing the their SAVE cases and monitoring their Nationality Act, 8 U.S.C. 1183, the Legal Responsibilities of Sponsors of own compliance with SAVE program Secretary of Homeland Security may Aliens, which placed a renewed focus admit an individual to the United States on adequately enforcing reimbursement upon posting a suitable and proper 1 Under Section 421 of the Personal and deeming requirements. The PM Responsibility and Work Opportunity bond. The individual may breach the details requirements related to data Reconciliation Act of 1996 (8 U.S.C. 1631), agencies bond conditions if they receive certain collection when determining eligibility adjudicating Federal means-tested public benefits public benefits, as defined in 8 CFR for certain sponsored immigrants who must consider (‘‘deem’’) the income and assets of 212.21(b), after adjustment of status to a qualified sponsor who has completed a Form I– seek Federal means-tested public 864 or Form I–864EZ, Affidavit of Support that of a lawful permanent resident, and benefits, and directs Federal agencies to (collectively referred to herein as a ‘‘Form I–864’’), until the bond is cancelled under 8 CFR take steps necessary to ensure or a qualified household member who has 213.1(g). For purposes of managing this compliance with requirements under completed a Form I–864A, Contract Between bond process, DHS/USCIS may access Sponsor and Household Member, as available to the the INA and other applicable Federal sponsored benefit applicant in determining whether the Verification Information System law. As such, SAVE is amending its he or she is eligible for certain Federal means-tested (VIS) to review whether USCIS bond processes so if sponsorship information public benefits. submitters may have applied for and

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received public benefits, and to inform substantive changes, including re- SECURITY CLASSIFICATION: potential inquiries related to the receipt lettering routine uses, to simplify the Unclassified. of those public benefits. formatting and text of the previously SYSTEM LOCATION: DHS/USCIS is also modifying the published notice. category of individuals covered under Consistent with DHS’s information Records are maintained at USCIS this SORN to reflect that the system sharing mission, information stored in Headquarters in Washington, DC, and at covers individuals who have filed, for DHS/USCIS–004 Systematic Alien DHS/USCIS field offices. Electronic themselves or on the behalf of others, Verification for Entitlements Program records are stored in the Verification Information System (VIS). applications or other requests for System of Records may be shared with Federal, state, local, or tribal licenses or other DHS Components that have a need SYSTEM MANAGER(S): benefits; individuals who have been to know the information to carry out Chief, Verification Division, granted naturalized or derived U.S. their national security, law enforcement, [email protected], U.S. citizenship; individuals who have immigration, intelligence, or other Citizenship and Immigration Services, applied for or received other homeland security functions. In Department of Homeland Security, 131 immigration benefits pursuant to 8 addition, DHS/USCIS may share M Street NE, Suite 200, Mail Stop 2620, U.S.C. 1103 et seq. or other applicable information with appropriate Federal, Washington, DC 20529. law; individuals subject to certain state, local, tribal, territorial, foreign, or background investigations; individuals international government agencies AUTHORITY FOR MAINTENANCE OF THE SYSTEM: accessing SAVE Case Check; users and consistent with the routine uses set Authority for having a system for administrators who access the system to forth in this system of records notice. verification of citizenship and facilitate citizenship and immigration This modified system will be immigration status is found in status verification; and other included in DHS’s inventory of record Immigration and Nationality Act, Public individuals whose information is systems. Law 82–414, 66 Stat. 163 (1952), as verified with SAVE pursuant to a SAVE amended, Immigration Reform and Memorandum of Agreement or II. Privacy Act Control Act, Public Law 99–603, 100 Computer Matching Agreement. DHS/ The Privacy Act embodies fair Stat. 3359 (1986); Personal USCIS is also clarifying that the information practice principles in a Responsibility and Work Opportunity categories of individuals covered by the statutory framework governing the Reconciliation Act, Public Law 104– system include sponsors that have means by which Federal Government 193, 110 Stat. 2105 (1996); Illegal signed either a Form I–864, Affidavit of agencies collect, maintain, use, and Immigration Reform and Immigrant Support Under Section 213A of the Act, disseminate individuals’ records. The Responsibility Act, Public Law 104–208, Form I–864EZ, Affidavit of Support Privacy Act applies to information that 110 Stat. 3009 (1997); the REAL ID Act Under Section 213A of the Act, or is maintained in a ‘‘system of records.’’ of 2005, Public Law 109–13, 119 Stat. household members that have signed a A ‘‘system of records’’ is a group of any 231 (2005); Patient Protection and Form I–864A, Contract Between records under the control of an agency Affordable Care Act, Public Law 111– Sponsor and Household Member. The from which information is retrieved by 148, 124 Stat. 119 (Mar. 23, 2010), as previous SORN only covered the I–864 the name of an individual or by some amended by the Health Care and and not the I–864EZ or I–864A. Education Reconciliation Act of 2010, identifying number, symbol, or other DHS/USCIS is also expanding the Public Law 111–152, 124 Stat. 1029 identifying particular assigned to the categories of records to clarify the data (Mar. 30, 2010); and the FAA Extension, individual. In the Privacy Act, an elements that USCIS collects from the Safety, and Security Act of 2016, Public individual is defined to encompass U.S. applicant by the benefit-granting agency Law 114–190, 130 Stat. 615 (July 15, citizens and lawful permanent to facilitate citizenship and immigration 2016), 8 CFR Part 213a (Affidavits of residents. Additionally, and similarly, status verification, from the benefit- Support on Behalf of Immigrants). granting agency users who access the the Judicial Redress Act (JRA) provides system to facilitate citizenship and covered persons with a statutory right to PURPOSE(S) OF THE SYSTEM: immigration status verification, and the make requests for access and The purpose of this system is to individual information that may be used amendment to covered records, as provide a fee-based service that assists by SAVE to verify citizenship and defined by the JRA, along with judicial Federal, state, tribal, and local immigration status and provide a SAVE review for denials of such requests. In government agencies, benefit-granting response. addition, the JRA prohibits disclosures agencies, private entities, institutions, DHS/USCIS is updating the record of covered records, except as otherwise and licensing bureaus for any legally source categories to reflect information permitted by the Privacy Act. mandated purpose in accordance with collected from USCIS, DHS, and other Below is the description of the DHS/ an authorizing statute to confirm Federal agency systems of records. USCIS–004 Systematic Alien immigration and naturalized and certain DHS/USCIS is also modifying the Verification for Entitlements Program derived citizen status information, and routine use section of this SORN, System of Records. to otherwise efficiently administer their including updating Routine Use E and In accordance with 5 U.S.C. 552a(r), programs, to the extent that such adding Routine Use F to comply with DHS has provided a report of this disclosure is necessary to enable these requirements set forth by Office of system of records to the Office of agencies and entities to make decisions Management and Budget (OMB) Management and Budget and to related to (1) determining eligibility for Memorandum M–17–12, ‘‘Preparing for Congress. a Federal, state, tribal, or local public and Responding to a Breach of benefit; (2) issuing a license or grant; (3) Personally Identifiable Information,’’ SYSTEM NAME AND NUMBER: issuing a government credential; (4) (Jan. 3, 2017). Department of Homeland Security conducting a background investigation; DHS/USCIS is updating the contesting (DHS)/U.S. Citizenship and Immigration or (5) any other lawful purpose. This record procedures to remove references Services (USCIS)-004 Systematic Alien system is also used for USCIS bond to InfoPass, which has been phased out. Verification for Entitlements Program management purposes under sec. 213 of Additionally, this notice includes non- System of Records. the Immigration and Nationality Act.

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CATEGORIES OF INDIVIDUALS COVERED BY THE Exchange Visitor Identification System immigration status and provide a SAVE SYSTEM: (SEVIS) ID number; and response includes: Categories of individuals covered by • Other immigration number (e.g., • Full Name; this system include: (1) Individuals who Employment Authorization Document • Date of birth; have filed, for themselves or on the card number, naturalization number, • Country of birth; behalf of others, applications or other citizenship certificate number). • A-Number; requests for Federal, state, local or tribal Information collected from agency • SSN; licenses or benefits; (2) individuals who user who accesses the system to • Photograph; have been granted naturalized or facilitate citizenship and immigration • Government-issued identification derived U.S. citizenship; (3) individuals status verification may include the (e.g., foreign passport): who have applied for or received other following: Æ Document type; • immigration benefits pursuant to 8 Agency name; Æ Country of issuance (COI); • U.S.C. 1103 et seq. or other applicable Address; Æ Document number; and • Æ law; (4) sponsors 2 and household Names of Agency Point(s) of Expiration date. • members listed on the Form I–864 or I– Contact; Visa number; • Title of Agency Point(s) of Contact; • Form numbers (e.g., Form I–551, 864EZ, Affidavit of Support Under • Contact telephone number; Section 213A of the Act or Form I– • Lawful Permanent Resident Card, Form Fax number; I–766, Employment Authorization 864A, Contract Between Sponsor and • Email address; Household Member; (5) individuals • Document); User ID; and • subject to certain background • Type of license/benefit(s) the Other unique identifying numbers investigations; (6) individuals accessing agency issues (e.g., Unemployment (e.g., SEVIS Identification Number SAVE Case Check; (7) users and Insurance, Educational Assistance, (SEVIS ID number), Admission number administrators who access the system to (I–94 number)); Driver Licensing, and Social Security • facilitate citizenship and immigration Enumeration). Entry/Departure date; • Port of entry; status verification; and (8) other System-generated responses as a • individuals whose information is result of the SAVE verification process Alien Status Change date; • Naturalization date; verified with SAVE pursuant to a SAVE may include: • Memorandum of Agreement or • Verification Case Number; and Date admitted until; • • Country of citizenship; Computer Matching Agreement. SAVE response. • Information collected from the Document Grant date; • CATEGORIES OF RECORDS IN THE SYSTEM: benefit-granting agency about actions Document Receipt number; • that an agency adjudicating Federal Codes (e.g., class of admission, file Information collected from the benefit means-tested public benefits takes to control office, provision of law cited for applicant by the user agency to facilitate deem sponsor income as part of employment authorization); • citizenship and immigration status applicant income for purposes of Employment Authorization verification may include the following: Federal means-tested benefits eligibility Document (EAD) history; • • Full Name; and to seek reimbursement from Beneficiary information (e.g., Full • Date of birth; sponsors for the value of benefits Name, A-Number, Date of birth, Country • Citizenship or nationality; provided to sponsored applicants may of birth, SSN); • • Country of birth; include: Petitioner information (e.g., Full • Alien Number (A-Number); • Whether the benefit-granting agency Name, A-Number, SSN, Individual • Social Security number (SSN) (in approved or denied the application for Taxpayer Identification Number, very limited circumstances using the the means-tested public benefit; Naturalization Certificate number); Form G–845, Document Verification • If the benefit-granting agency • Sponsor(s) and household Request); denied the application, whether the member(s) information (e.g., Full Name, • Receipt number; denial was based upon the information Address, SSN); • Admission number (I–94 number); that SAVE provided in its response to • Spouse information (e.g., Full • User Agency Case number; the citizenship and immigration status Name, A-Number, Date of birth, Country • Agency DUNS number; of birth, Country of citizenship, Class of • verification request from the benefit- Visa number; granting agency; admission, Date of admission, Receipt • DHS Document type; • number, Phone number, Marriage date • Whether the benefit-granting agency DHS Document Expiration date; and location, Naturalization date and • deemed sponsor/household member Government-issued identification income and, if not, the exception or location); (e.g., passport): reason for not doing so; • Children information (e.g., Full Æ Document type; • Æ Whether the benefit-granting agency Name, A-Number, Date of birth, Country Country of issuance (COI); sent the sponsor a reimbursement of birth, Class of admission); Æ Document number; request letter (yes/no); • Employer information (e.g., Full Æ Expiration date; and • Æ Whether the sponsor complied with Name, Address, Supervisor’s name, Benefit requested (e.g., his or her reimbursement obligation; Supervisor’s Phone number); and unemployment insurance, educational and • Individuals associated with assistance, driver license). • • Whether the benefit-granting agency background checks information (e.g., Copies of original immigration conducted a collection action or other Full Name, A-Number, Date of birth, documents; • proceeding if the sponsor did not Country of birth). U.S. Immigration and Custom comply with his or her reimbursement Case history information may include: Enforcement (ICE) Student and obligation (yes/no and if yes, the status, • Alert(s); court or forum, and docket or matter • Case summary comments; 2 All references to ‘‘sponsor’’ or ‘‘sponsors’’ • include sponsors, joint sponsors, and substitute number). Case category; sponsors, as defined in the regulations at 8 CFR part Individual information that may be • Date of encounter; 213a. used by SAVE to verify citizenship and • Encounter information;

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• Custody actions and decisions; • DHS/ICE–001 Student and oversight operations as authorized by • Case actions and decisions; Exchange Visitor Information System, law, but only such information as is • Bonds; January 5, 2010 (75 FR 412); necessary and relevant to such audit or • Photograph; • DHS/ICE–011 Criminal Arrest oversight function. • Asylum applicant receipt date; Records and Immigration Enforcement E. To appropriate agencies, entities, • Airline and flight number; Records (CARIER) System of Records, and persons when (1) DHS suspects or • Country of residence; October 19, 2016 (81 FR 72080); has confirmed that there has been a • • City (e.g., where boarded, where DHS/ALL–003 Department of breach of the system of records; (2) DHS visa was issued); Homeland Security General Training has determined that as a result of the • Date visa issued; Records, November 25, 2008 (73 FR suspected or confirmed breach there is • 71656); a risk of harm to individuals, DHS Address in United States; • • Nationality; DHS/ALL–016 Correspondence (including its information systems, Records, September 26, 2018 (83 FR • Decision memoranda; Investigatory programs, and operations), the Federal 48645); reports and materials compiled for the Government, or national security; and • JUSTICE/EOIR–001 Records and purpose of enforcing immigration laws; (3) the disclosure made to such Management Information System, May • Exhibits; agencies, entities, and persons is • 11, 2004 (69 FR 26179); including reasonably necessary to assist in Transcripts; and routine use updates in 82 FR 24147 • Other case-related papers connection with DHS’s efforts to (May 25, 2017); respond to the suspected or confirmed concerning aliens, alleged aliens, or • STATE–05 Overseas Citizens lawful permanent residents brought into breach or to prevent, minimize, or Services Records and Other Overseas remedy such harm. the administrative adjudication process. Records, September 8, 2016 (81 FR F. To another Federal agency or RECORD SOURCE CATEGORIES: 62235); • STATE–26 Passport Records, March Federal entity, when DHS determines Records are obtained from several 24, 2015 (80 FR 15653); and that information from this system of sources including: (A) Agencies and • STATE–39 Visa Records, June 15, records is reasonably necessary to assist entities seeking to determine 2018 (83 FR 28062). the recipient agency or entity in (1) immigration or naturalized or derived responding to a suspected or confirmed citizenship status; (B) Individuals ROUTINE USES OF RECORDS MAINTAINED IN THE breach or (2) preventing, minimizing, or seeking public licenses, benefits, or SYSTEM, INCLUDING CATEGORIES OF USERS AND remedying the risk of harm to credentials; (C) Other DHS components PURPOSES OF SUCH USES: individuals, the recipient agency or assisting with enrollment and system In addition to those disclosures entity (including its information maintenance processes; (D) Information generally permitted under 5 U.S.C. systems, programs, and operations), the created by SAVE; and (E) Information 552a(b) of the Privacy Act, all or a Federal Government, or national collected from USCIS, DHS, and other portion of the records or information security, resulting from a suspected or Federal agency systems of records: contained in this system may be confirmed breach. • DHS/USCIS/ICE/CBP–001 Alien disclosed outside DHS as a routine use G. To an appropriate Federal, state, File, Index, and National File Tracking pursuant to 5 U.S.C. 552a(b)(3) as tribal, local, international, or foreign law System of Records, September 18, 2017 follows: enforcement agency or other appropriate (82 FR 43556); A. To the Department of Justice (DOJ), authority charged with investigating or • DHS/USCIS–007 Benefits including the U.S. Attorneys Offices, or prosecuting a violation or enforcing or Information System, October 10, 2019 other Federal agencies conducting implementing a law, rule, regulation, or (84 FR 54622); litigation or proceedings before any order, when a record, either on its face • DHS/USCIS–010 Asylum court, adjudicative, or administrative or in conjunction with other Information and Pre-Screening System body, when it is relevant or necessary to information, indicates a violation or of Records, November 30, 2015 (80 FR the litigation and one of the following potential violation of law, which 74781); is a party to the litigation or has an includes criminal, civil, or regulatory • DHS/USCIS–018 Immigration interest in such litigation: violations and such disclosure is proper 1. DHS or any component thereof; Biometric and Background Check (IBBC) and consistent with the official duties of 2. Any employee or former employee Records System of Records, July 31, the person making the disclosure. of DHS in his/her official capacity; 2018 (83 FR 36950); H. To contractors and their agents, • 3. Any employee or former employee DHS/CBP–005 Advance Passenger of DHS in his/her individual capacity, grantees, experts, consultants, and Information System (APIS), March 13, only when DOJ or DHS has agreed to others performing or working on a 2015 (80 FR 13407); contract, service, grant, cooperative • represent the employee; or DHS/CBP–006 Automated 4. The United States or any agency agreement, or other assignment for DHS, Targeting System, May 22, 2012 (77 FR thereof. when necessary to accomplish an 30297); B. To a congressional office from the agency function related to this system of • DHS/CBP–007 CBP Border Crossing record of an individual in response to records. Individuals provided Information (BCI), December 13, 2016 an inquiry from that congressional office information under this routine use are (81 FR 89957); made at the request of the individual to subject to the same Privacy Act • DHS/CBP–011 U.S. Customs and whom the record pertains. requirements and limitations on Border Protection TECS, December 19, C. To the National Archives and disclosure as are applicable to DHS 2008 (73 FR 77778); Records Administration (NARA) or officers and employees. • DHS/CBP–016 Nonimmigrant General Services Administration I. To approved Federal, state, tribal, Information System, March 13, 2015 (80 pursuant to records management and local government agencies for any FR 13398); inspections being conducted under the legally mandated purpose in accordance • DHS/CBP–021 Arrival and authority of 44 U.S.C. 2904 and 2906. with their authorizing statute or law and Departure Information System (ADIS), D. To an agency or organization for when an approved Memorandum of November 18, 2015 (80 FR 72081); the purpose of performing audit or Agreement (MOA) or Computer

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Matching Agreement (CMA) is in place with the investigation. This initial 10- Information Act Officer, http:// between DHS and the entity. year period is based on the statute of www.dhs.gov/foia or 1–866–431–0486. J. To a Federal, state, tribal, or local limitations for most types of misuse or In addition, the individual should: government agency that oversees or fraud possible using SAVE (under 18 • Explain why the individual believes administers Federal means-tested public U.S.C. 3291, the statute of limitations the Department would have information benefits for purposes of seeking for false statements or misuse regarding on him/her; reimbursement from sponsors for the passports, citizenship, or naturalization • Identify which component(s) of the value of benefits provided to sponsored documents). Department the individual believes may applicants, as well as reporting on ADMINISTRATIVE, TECHNICAL, AND PHYSICAL have the information about him/her; overall sponsor deeming and agency • reimbursement efforts to appropriate SAFEGUARDS: Specify when the individual administrative and oversight agencies. DHS/USCIS safeguards records in this believes the records would have been K. To airport operators to determine system according to applicable rules created; and the eligibility of individuals seeking and policies, including all applicable • Provide any other information that unescorted access to any Security DHS automated systems security and will help the FOIA staff determine Identification Display Area of an airport, access policies. USCIS has imposed which DHS component agency may as required by the FAA Extension, strict controls to minimize the risk of have responsive records; Safety, and Security Act of 2016. compromising the information that is If an individual’s request is seeking L. To the news media and the public, being stored. Access to the computer records pertaining to another living with the approval of the Chief Privacy system containing the records in this individual, the first individual must Officer in consultation with counsel, system is limited to those individuals include a statement from the second when there exists a legitimate public who have a need to know the individual certifying his/her agreement interest in the disclosure of the information for the performance of their for the first individual to access his/her information, when disclosure is official duties and who have appropriate records. necessary to preserve confidence in the clearances or permissions. Without the above information, the integrity of DHS, or when disclosure is RECORD ACCESS PROCEDURES: component(s) may not be able to necessary to demonstrate the Individuals seeking access to and conduct an effective search, and the accountability of DHS’s officers, individual’s request may be denied due employees, or individuals covered by notification of any record contained in this system of records, or seeking to to lack of specificity or lack of the system, except to the extent the compliance with applicable regulations. Chief Privacy Officer determines that contest its content, may submit a request in writing to the Chief Privacy release of the specific information in the CONTESTING RECORD PROCEDURES: context of a particular case would Officer and to the USCIS FOIA/Privacy For records covered by the Privacy constitute a clearly unwarranted Act Officer whose contact information Act or covered JRA records, see ‘‘Record invasion of personal privacy. can be found at http://www.dhs.gov/foia under ‘‘Contacts Information.’’ If an Access Procedures’’ above. For records POLICIES AND PRACTICES FOR STORAGE OF individual believes more than one not covered by the Privacy Act or RECORDS: component maintains Privacy Act Judicial Redress Act, individuals may DHS/USCIS stores records in this records concerning him or her, the still amend their records at a USCIS system electronically or on paper in individual may submit the request to Field Office by contacting the USCIS secure facilities in a locked drawer the Chief Privacy Officer and Chief Contact Center at 1–800–375–5283 to behind a locked door. The records may Freedom of Information Act Officer, request an appointment. be stored on magnetic disc, tape, and Department of Homeland Security, digital media. Washington, DC 20528–0655. Even if NOTIFICATION PROCEDURES: neither the Privacy Act nor the Judicial See ‘‘Record Access Procedures.’’ POLICIES AND PRACTICES FOR RETRIEVAL OF RECORDS: Redress Act (JRA) provide a right of EXEMPTIONS PROMULGATED FOR THE SYSTEM: DHS/USCIS retrieves records by name access, certain records about him or her of applicant or other unique identifier to may be available under the Freedom of None. However, when this system include: Verification Case Number, A- Information Act. receives a record from another system When an individual is seeking records Number, I–94 Number, Social Security exempted in that source system under 5 about himself or herself from this number, Passport number, Visa number, U.S.C. 552a, DHS will claim the same system of records or any other SEVIS ID number, or by the submitting exemptions for those records that are Departmental system of records, the agency name. claimed for the original primary systems individual’s request must conform with of records from which they originated. POLICIES AND PRACTICES FOR RETENTION AND the Privacy Act regulations set forth in DISPOSAL OF RECORDS: 6 CFR part 5. The individual must first HISTORY: SAVE records are covered by NARA- verify his/her identity, meaning that the 81 FR 78619 (November 8, 2016); 76 approved records retention and disposal individual must provide his/her full FR 183 (September 21, 2011); 73 FR schedule, N1–566–08–07. Records name, current address, and date and 75445 (December 11, 2008); 73 FR collected in the process of enrolling in place of birth. The individual must sign 10793 (February 28, 2008); 72 FR 17569 SAVE and in verifying citizenship or the request, and the individual’s (April 9, 2007); 67 FR 64134 (October immigration status are stored and signature must either be notarized or 17, 2002); and 66 FR 174 (September 7, retained in SAVE for ten (10) years from submitted under 28 U.S.C. 1746, a law 2001). the date of the completion of that permits statements to be made verification. However, if the records are under penalty of perjury as a substitute Constantina Kozanas, part of an ongoing investigation, they for notarization. While no specific form Chief Privacy Officer, Department of will be retained until completion of the is required, an individual may obtain Homeland Security. investigation and pursuant to the forms for this purpose from the Chief [FR Doc. 2020–11390 Filed 5–26–20; 8:45 am] records retention schedule associated Privacy Officer and Chief Freedom of BILLING CODE 9111–97–P

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DEPARTMENT OF THE INTERIOR Sec. 25, SE1⁄4SW1⁄4 and SW1⁄4SE1⁄4. FOR FURTHER INFORMATION CONTACT: T. 3 S., R. 14 E., Bryce Anderson, Project Manager by Bureau of Land Management Sec. 33, NE1⁄4NW1⁄4, SW1⁄4NW1⁄4, telephone: 208–478–6353; address: 4350 SE1⁄4SW1⁄4 and SW1/4SE1⁄4; S Cliffs Dr., Pocatello, ID 83204; or [20X LLAZ920000.71220000.KD0000. Sec. 34, SE1⁄4SW1⁄4. LVTFA2058950; AZA31116] email: [email protected]. People T. 4 S., R. 14 E., who use a telecommunications device Public Land Order No. 7894; Partial Sec. 4, lots 3 and 4; for the deaf (TDD) may call the Federal Sec. 5, lot 1. Revocation of a Withdrawal Created by Relay Service (FRS) at 1–800–877–8339 an Executive Order Dated April 17, The areas described aggregate 378.29 acres to contact Mr. Anderson. The FRS is in Pinal County, Arizona. 1926, Which Established the Public available 24 hours a day, 7 days a week, Water Reserve No. 107; Arizona 2. On May 14, 2020 the land to leave a message or question with Mr. described in Paragraph 1 opened to Anderson. You will receive a reply AGENCY: Bureau of Land Management, settlement, sale, or entry under the during normal business hours. Interior. public land laws described by the SUPPLEMENTARY INFORMATION: The BLM ACTION: Public land order. Executive Order in Paragraph 1, subject is the lead agency for the land exchange to valid existing rights, the provisions of that was proposed in 2019. The Idaho SUMMARY: This Order revokes portions existing withdrawals, other segregations Department of Environmental Quality of a withdrawal created by an Executive of record, and the requirements of (IDEQ), Idaho Governor’s Office of Order dated April 17, 1926, which applicable law. Energy and Mineral Resources (OEMR), established Public Water Reserve (PWR) EPA, and Bureau of Indian Affairs (BIA) No. 107 insofar as it affects 378.29 acres Dated: May 14, 2020. are Cooperating Agencies. of public lands withdrawn from David L. Bernhardt, In 1994, the J.R. Simplot Company settlement, sale, location, or entry under Secretary of the Interior. (Simplot) submitted a proposal to the public land laws, including location [FR Doc. 2020–11265 Filed 5–26–20; 8:45 am] acquire 719 acres of Federal land for non-metalliferous minerals under BILLING CODE 4310–32–P managed by the BLM in exchange for the United States mining laws, for 667 acres of non-Federal land. The protection of springs and waterholes. Federal lands are adjacent to Simplot’s This Order opens the land to the public DEPARTMENT OF THE INTERIOR Don Plant in Power and Bannock land laws. Bureau of Land Management Counties, Idaho. The non-Federal lands DATES: This Public Land Order took are located in the Blackrock and Caddy effect on May 14, 2020. 20X.LLIDI02000. L71220000.FR0000.LVTFD2015100. Canyon areas in Bannock County FOR FURTHER INFORMATION CONTACT: 241A.4500131504] approximately 5 miles east-southeast of Michael Werner, BLM, Arizona State Pocatello. Office, One North Central Avenue, Suite Notice of Availability for the Final In 1998, pursuant to the 800, Phoenix, AZ 85004, 602–417–9561. Environmental Impact Statement for Comprehensive Environmental Persons who use a telecommunications the Proposed Blackrock Land Response Compensation and Liability device for the deaf (TDD) may call the Exchange, Bannock and Power Act, the Don Plant facilities and the Federal Relay Service (FRS) at 1–800– Counties, Idaho surrounding area, known as the Eastern 877–8339 to contact the above Michaud Flats (EMF), were designated individual. The FRS is available 24 AGENCY: Bureau of Land Management, as a Superfund Site, including a portion hours per day, 7 days per week, to leave Department of the Interior. of the proposed Federal lands to be a message or question. You will receive ACTION: Notice of Availability. exchanged. The BLM prepared an a reply during normal business hours. Environmental Assessment (EA) to SUMMARY: In compliance with the SUPPLEMENTARY INFORMATION: A portion analyze the proposed land exchange and National Environmental Policy Act of of the withdrawal created by Executive issued a Decision Record/Finding of No 1969 (NEPA), as amended, and the Order dated April 17, 1926, which Significant Impact (DR/FONSI) on Federal Land Policy and Management established Public Water Reserve No. December 21, 2007. The Shoshone- Act of 1976 (FLPMA), as amended, the 107 (PWR No. 107), is no longer Bannock Tribes litigated the decision in Bureau of Land Management (BLM) necessary for the purpose for which the District Court. In May 2011, the Court Pocatello Field Office, in Pocatello, land was withdrawn, and partial granted the Tribes’ motion and Idaho, has prepared a Final revocation of the withdrawal is needed remanded the DR/FONSI to the BLM, Environmental Impact Statement (EIS) to facilitate a land exchange. ordering the agency to prepare an EIS. for the proposed Blackrock Land The BLM’s purpose is to evaluate the Order Exchange and by this notice is current land exchange proposal and the By virtue of the authority vested in announcing its availability. need is to respond to the proposal the Secretary of the Interior by Section DATES: The BLM will not issue a final pursuant to FLPMA. The land exchange 204 of the Federal Land Policy and decision on the proposal for a minimum would result in improved resource Management Act of 1976, 43 U.S.C. of 60 days after the date that the U.S. management in an area containing 1714, it is ordered as follows: Environmental Protection Agency (EPA) crucial mule deer winter range and 1. The withdrawal created by the publishes its Notice of Availability in would secure permanent public access Executive Order dated April 17, 1926, the Federal Register. within a popular recreation area. which established Public Water Reserve ADDRESSES: The Final EIS is available Simplot’s purpose for the proposed land No. 107, is hereby revoked insofar as it on the BLM ePlanning project website at exchange is to implement legally affects the following described Federal https://go.usa.gov/xEUuc. If you are enforceable controls as directed by the lands: unable to access the documents online EPA and IDEQ. To meet fluoride and would like a paper copy, please reduction requirements from a 2016 Gila & Salt River Meridian, Arizona contact the Project Lead identified Consent Order with the IDEQ, Simplot T. 3 S., R. 12 E., below. has proposed construction of cooling

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ponds adjacent to the Don Plant, which boundary of the Federal lands to DATES: would require the acquisition of minimize impacts to cultural and tribal June 3, 2020: Deadline for filing adjacent Federal lands. Additionally, resources in the West Canyon area on requests to appear at the public hearing. this acquisition would allow Simplot to the north side of Howard Mountain. The June 3, 2020: Deadline for filing pre- maximize the operational life of its Federal lands that would be acquired by hearing briefs and statements. ongoing phosphate processing Simplot would be reconfigured to June 19, 2020: Public hearing. operations at the Don Plant by eliminate the West Canyon area from June 29, 2020: Deadline for filing expanding gypsum stacks onto adjacent the land exchange. This alternative post-hearing briefs and statements. land. would involve exchanging 711 acres of June 29, 2020: Deadline for filing all The formal public scoping process for Federal land for 667 acres of non- other written submissions. the EIS began on May 20, 2019, with Federal land. This alternative also August 31, 2020: Transmittal of publication of a Notice of Intent in the includes the voluntary mitigation and Commission report to the USTR. Federal Register, which initiated a 45- donation parcels (A and B). Simplot Because COVID–19 mitigation day public comment period. Key would donate $25,000 to the Shoshone- measures are in effect, the Commission resource issues identified during Bannock Tribes’ Language Program as will hold the public hearing virtually. scoping include: Air quality, cultural voluntary mitigation for the BLM’s For further information on the hearing, resources, fish and wildlife, hazardous conveyance of a National Register of see the section below on ‘‘public and solid wastes, lands and realty, Historic Places (NRHP)-eligible site hearing’’ and also the Commission’s recreation, socioeconomics, within the Federal land. ongoing investigations website (https:// environmental justice, tribal treaty Under the No Action Alternative, the usitc.gov/research_and_analysis/what_ rights, visual resources, and water proposed land exchange would not be we_are_working_on.htm), before June resources. The Notice of Availability for authorized. 22, 2020 for details about the hearing the Draft EIS was published on The BLM selected Alternative B as the format. Preferred Alternative, because it adjusts December 20, 2019, initiating a 45-day ADDRESSES: All Commission offices are the boundary of the Federal lands to public comment period. The public located in the United States minimize impacts to cultural resources, comments resulted in the addition of: International Trade Commission allows for a net gain of public lands, (1) Information on radioactivity and Building, 500 E Street SW, Washington, and makes additional lands available for radionuclides, (2) information on water DC. All written submissions should be tribal uses. The BLM will continue quality in the Portneuf River, including addressed to the Secretary, United consultation with Native American contributions from upstream sources, States International Trade Commission, Tribes on a government-to-government especially phosphorous and arsenic, 500 E Street SW, Washington, DC and (3) qualitative information basis in accordance with Executive 20436. The public record for this describing how a complete liner failure Order 13175 and other policies. The investigation may be viewed on the could occur and general types of effects/ BLM will give tribal concerns due Commission’s electronic docket (EDIS) impacts. The BLM has responded to consideration, including impacts on at https://edis.usitc.gov. substantive comments and made Native American trust assets and appropriate revisions to the Final EIS or potential impacts to cultural resources. FOR FURTHER INFORMATION CONTACT: Information specific to this investigation explained why a comment did not Authority: 40 CFR 1506.6, 40 CFR 1506.10. warrant a change. may be obtained from Sharon Ford, The Final EIS evaluates the Proposed John F. Ruhs, Project Leader, Office of Industries Action and two action alternatives, in BLM Idaho State Director. (202–205–3084 or sharon.ford@ addition to a No Action Alternative. The [FR Doc. 2020–11365 Filed 5–26–20; 8:45 am] usitc.gov), or Greg LaRocca, Deputy Proposed Action is to exchange 719 BILLING CODE 4310–GG–P Project Leader, Office of Industries acres of Federal land for 667 acres of (202–205–3405 or gregory.larocca@ non-Federal land. usitc.gov) or Marin Weaver, Technical Alternative A (Increased Non-Federal INTERNATIONAL TRADE Advisor, Office of Industries (202–205– Land Acreage) includes the same area of COMMISSION 3461 or [email protected]). For Federal (719 acres) and non-Federal information on the legal aspects of this lands (667 acres) as the proposed action, [Investigation No. 332–578] investigation, contact William Gearhart with the addition of voluntary of the Commission’s Office of the mitigation and donation parcels (A and Generalized System of Preferences: General Counsel (202–205–3091 or B) proposed by Simplot. Parcel A is Possible Modifications, 2020 Review [email protected]). The media voluntary mitigation that includes an AGENCY: United States International should contact Margaret O’Laughlin, additional 160 acres of non-Federal land Trade Commission. Office of External Relations (202–205– within Blackrock Canyon to mitigate the ACTION: Notice of institution of 1819 or [email protected]). net loss of Federal acres in the proposed investigation and scheduling of public Hearing-impaired individuals may action. The acquired lands would be hearing. obtain information on this matter by available to tribal members for contacting the Commission’s TDD aboriginal purposes and would improve SUMMARY: Following receipt of a request terminal at 202–205–1810. General existing public access to the Chinese on May 4, 2020, from the United States information concerning the Commission Peak/Blackrock Trail system. Parcel B is Trade Representative (USTR), the U.S. may also be obtained by accessing its a proposed donation consisting of International Trade Commission website (http://www.usitc.gov). Persons approximately 950 acres within the Fort (Commission) instituted Investigation with mobility impairments who will Hall Reservation that would be offered No. 332–578, Generalized System of need special assistance in gaining access to the Secretary of the Interior, or to the Preferences: Possible Modifications, to the Commission should contact the Shoshone-Bannock Tribes. 2020 Review, for the purpose of Office of the Secretary at 202–205–2000. Alternative B (Avoiding the West providing advice and information Background: In his letter, the USTR Canyon) was developed from comments relating to the possible addition of requested the advice and information received during scoping to adjust the articles and removal of articles. described below.

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(1) Advice as to the probable delegated by the President, pursuant to Public Hearing: A public hearing in economic effect on total U.S. imports, section 332(g) of the Tariff Act of 1930, connection with this investigation will on U.S. industries producing like or with respect to the articles listed in be held beginning at 9:30 a.m. on June directly competitive articles, and on Table B of the Annex to the USTR 19, 2020, virtually. Information about U.S. consumers of the elimination of request letter, the USTR requested that the virtual hearing and how to U.S. import duties on the articles in the Commission provide its advice as to participate will be posted on the Table A for all beneficiary developing the probable economic effect of the Commission’s website at (https:// countries under the GSP program. In removal from eligibility for duty-free usitc.gov/research_and_analysis/what_ accordance with sections 503(a)(1)(A), treatment under the GSP program for we_are_working_on.htm). Once on that 503(e), and 131(a) of the Trade Act of these articles from all beneficiary web page, scroll down to the entry for 1974, as amended (‘‘the 1974 Act’’) and developing countries on total U.S. investigation No. 332–578, Generalized pursuant to the authority of the imports, on U.S. industries producing System of Preferences: Possible President delegated to the USTR by like or directly competitive articles, and Modifications, 2020 Review, and click sections 4(c) and 8(c) and (d) of on U.S. consumers (see Table B below). on the link to ‘‘hearing instructions’’. Executive Order 11846 of March 31, Requests to appear at the public hearing 1975, as amended, and pursuant to TABLE B—2020 GSP ANNUAL RE- should be filed with the Secretary no section 332(g) of the Tariff Act of 1930, VIEW—PETITIONS SUBMITTED TO later than 5:15 p.m., June 3, 2020. All the USTR notified the Commission that REMOVE DUTY-FREE STATUS FOR A pre-hearing briefs and statements the articles identified in Table A of the PRODUCT ON THE LIST OF ELIGIBLE should be filed no later than 5:15 p.m., Annex to the USTR request letter are ARTICLES FOR THE GSP PROGRAM June 3, 2020; and all post-hearing briefs being considered for designation as and statements should be filed no later eligible articles for purposes of the GSP HTS than 5:15 p.m., June 29, 2020. All Brief description program. The USTR requested that the provision requests to appear, and pre- and post- Commission provide its advice as to the hearing briefs and statements should be probable economic effect on total U.S. 1006.10.00 ..... Rice in the husk (paddy or filed in accordance with the rough). requirements of the ‘‘written imports, U.S. industries producing like 1006.20.20 ..... Basmati rice, husked. or directly competitive articles, and on submissions’’ section below. 1006.20.40 ..... Husked (brown) rice, other Written Submissions: In lieu of or in U.S. consumers of the elimination of than Basmati. U.S. import duties on the articles 1006.30.10 ..... Rice semi-milled or wholly addition to participating in the hearing, identified in Table A of the Annex to milled, whether or not pol- interested parties are invited to file the USTR request letter for all ished or glazed, parboiled. written submissions concerning this beneficiary developing countries under 1006.30.90 ..... Rice semi-milled or wholly investigation. All written submissions the GSP program (see Table A below). milled, whether or not pol- should be addressed to the Secretary, ished or glazed, other than and should be received not later than parboiled. TABLE A—2020 GSP ANNUAL RE- 5:15 p.m., June 29, 2020. All written 1006.40.00 ..... Broken rice. submissions must conform to the VIEW—PETITIONS SUBMITTED TO provisions of section 201.8 of the ADD PRODUCTS TO THE LIST OF ELI- Time for reporting, HTS detail, Commission’s Rules of Practice and GIBLE ARTICLES FOR THE GENERAL- portions of report to be classified. As Procedure (19 CFR 201.8), as IZED SYSTEM OF PREFERENCES requested by the USTR, the Commission temporarily amended by 85 FR 15798 (GSP) will provide the requested advice and (March 19, 2020). Under that rule information by August 31, 2020. The waiver, the Office of the Secretary will USTR asked that the Commission issue, HTS Brief description accept only electronic filings at this provision as soon as possible thereafter, a public time. Filings must be made through the version of the report containing only the 0603.11.00 ..... Sweetheart, Spray and other Commission’s Electronic Document unclassified information, with any Information System (EDIS, https:// Roses, fresh cut. confidential business information 0603.11.0010 Sweetheart roses, fresh, edis.usitc.gov). No in-person paper- suitable for bouquets or deleted. As requested, the Commission based filings or paper copies of any for ornamental purposes. will provide its probable economic electronic filings will be accepted until 0603.11.0030 Spray roses, fresh, suitable effect advice and statistics (profile of the further notice. Persons with questions for bouquets or for orna- U.S. industry and market and U.S. regarding electronic filing should mental purposes. import and export data) and any other contact the Office of the Secretary, 0603.11.0060 Roses, fresh, suitable for relevant information or advice Docket Services Division (202–205– bouquets for ornamental separately and individually for each 1802), or consult the Commission’s purposes, nesoi. U.S. Harmonized Tariff Schedule Handbook on Filing Procedures. provision for all products subject to the Confidential Business Information: (2) Advice as to the probable request. The USTR indicated that those Any submissions that contain economic effect of the removal from sections of the Commission’s report and confidential business information must eligibility for duty-free treatment under working papers that contain the also conform with the requirements of the GSP program for these articles from Commission’s advice and assessment of section 201.6 of the Commission’s Rules all countries on total U.S. imports, on probable economic effects on domestic of Practice and Procedure (19 CFR U.S. industries producing like or industries, on U.S. imports, and on U.S. 201.6). Section 201.6 of the rules directly competitive articles, and on consumers, will be classified as requires that the cover of the document U.S. consumers. The USTR notified the ‘‘confidential.’’ The USTR also stated and the individual pages be clearly Commission that six articles from all that his office considers the marked as to whether they are the beneficiary developing countries are Commission’s report to be an inter- ‘‘confidential’’ or ‘‘non-confidential’’ being considered for removal from agency memorandum that will contain version, and that the confidential eligibility for duty-free treatment under pre-decisional advice and be subject to business information is clearly the GSP program. Under authority the deliberative process privilege. identified by means of brackets. All

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written submissions, except for INTERNATIONAL TRADE Docket Services Division, U.S. confidential business information, will COMMISSION International Trade Commission, telephone (202) 205–1802. be made available for inspection by [Investigation No. 337–TA–1201] interested parties. SUPPLEMENTARY INFORMATION: Authority: The Commission may include some or Certain Liquid Crystal Display Devices, The authority for institution of this all of the confidential business Components Thereof, and Products investigation is contained in section 337 information submitted in the course of Containing the Same; Institution of of the Tariff Act of 1930, as amended, this investigation in the report it sends Investigation 19 U.S.C. 1337, and in section 210.10 of the Commission’s Rules of Practice and to the USTR. Additionally, all AGENCY: U.S. International Trade Procedure, 19 CFR 210.10 (2020). information, including confidential Commission Scope of Investigation: Having business information, submitted in this ACTION: Notice considered the complaint, the U.S. investigation may be disclosed to and International Trade Commission, on used: (i) By the Commission, its SUMMARY: Notice is hereby given that a complaint was filed with the U.S. May 20, 2020, ordered that— employees and Offices, and contract (1) Pursuant to subsection (b) of International Trade Commission on personnel (a) for developing or section 337 of the Tariff Act of 1930, as April 21, 2020, under section 337 of the maintaining the records of this or a amended, an investigation be instituted related proceeding, or (b) in internal Tariff Act of 1930, as amended, on behalf of Sharp Corporation of Japan to determine whether there is a investigations, audits, reviews, and and Sharp Electronics Corporation of violation of subsection (a)(1)(B) of evaluations relating to the programs, New Jersey. Supplements to the section 337 in the importation into the personnel, and operations of the complaint were filed on April 22, 2020, United States, the sale for importation, Commission including under 5 U.S.C. May 4, 2020, and May 12, 2020. The or the sale within the United States after Appendix 3; or (ii) by U.S. government complaint, as supplemented, alleges importation of certain products employees and contract personnel for violations of section 337 based upon the identified in paragraph (2) by reason of cybersecurity purposes. The importation into the United States, the infringement of one or more of claims 1 Commission will not otherwise disclose sale for importation, and the sale within and 4–6 of the ’329 patent; claims 1–2 any confidential business information in the United States after importation of and 11–13 of the ’533 patent; claims 1, a manner that would reveal the certain liquid crystal display devices, 4, 6, 11–12, 15, 17, and 22 of the ’912 operations of the firm supplying the components thereof, and products patent; claims 1, 3, 5, 10–11, 13, 15, 17, information. containing the same by reason of and 22 of the ’204 patent; and claims 8– infringement of certain claims of U.S. 13 of the ’863 patent, and whether an Summaries of Written Submissions: industry in the United States exists as Persons wishing to have a summary of Patent No. 7,245,329 (‘‘the ’329 patent’’); U.S. Patent No. 7,372,533 (‘‘the ’533 required by subsection (a)(2) of section their position included in the report patent’’); U.S. Patent No. 8,022,912 (‘‘the 337; should include a summary with their ’912 patent’’); U.S. Patent No. 8,451,204 (2) Pursuant to section 210.10(b)(1) of written submission and should mark the (‘‘the ’204 patent’’); and U.S. Patent No. the Commission’s Rules of Practice and summary as having been provided for 8,847,863 (‘‘the ’863 patent’’). The Procedure, 19 CFR 210.10(b)(1), the that purpose. The summary should be complaint further alleges that an plain language description of the clearly marked as ‘‘summary for industry in the United States exists as accused products or category of accused inclusion in the report’’ at the top of the required by the applicable Federal products, which defines the scope of the page. The summary may not exceed 500 Statute. investigation, is ‘‘high definition words, should be in MS Word format or The complainants request that the televisions and display screens, LCD a format that can be easily converted to Commission institute an investigation panels, LCD modules (consisting of LCD MS Word, and should not include any and, after the investigation, issue a panels as well as a controller and confidential business information. The limited exclusion order and cease and backlight), and components of each’’; summary will be published as provided desist orders. (3) For the purpose of the if it meets these requirements and is ADDRESSES: The complaint, as investigation so instituted, the following germane to the subject matter of the supplemented, except for any are hereby named as parties upon which investigation. The Commission will list confidential information contained this notice of investigation shall be served: the name of the organization furnishing therein, may be viewed on the (a) The complainants are: the summary and will include a link to Commission’s electronic docket (EDIS) Sharp Corporation, 1 Takumi-cho, the Commission’s Electronic Document at https://edis.usitc.gov. For help Sakai-ku, Sakai City, Osaka, 590–8522 Information System (EDIS) where the accessing EDIS, please email Japan full written submission can be found. [email protected]. Hearing impaired individuals are advised that information Sharp Electronics Corporation, 100 By order of the Commission. on this matter can be obtained by Paragon Drive, Montvale, New Jersey Issued: May 21, 2020. contacting the Commission’s TDD 07645 Lisa Barton, terminal on (202) 205–1810. Persons (b) The respondents are the following Secretary to the Commission. with mobility impairments who will entities alleged to be in violation of need special assistance in gaining access section 337, and are the parties upon [FR Doc. 2020–11359 Filed 5–26–20; 8:45 am] to the Commission should contact the which the complaint is to be served: BILLING CODE 7020–02–P Office of the Secretary at (202) 205– VIZIO Inc., 39 Tesla, Irvine, CA 92618 2000. General information concerning Xianyang CaiHong Optoelectronics the Commission may also be obtained Technology Co., Ltd., No.1, Gaoke by accessing its internet server at Yilu, Qindu District, Xianyang, https://www.usitc.gov. Shaanxi, 712000, China FOR FURTHER INFORMATION CONTACT: TPV Technology, Ltd., Units 1208–16, Katherine Hiner, Office of the Secretary, 12/F, C-Bons International Center, 108

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Wai Yip Street, Kwun Tong, Kowloon, DEPARTMENT OF JUSTICE Commission disclosing changes in its Hong Kong membership. The notifications were TPV Display Technology (Xiamen) Co., Antitrust Division filed for the purpose of extending the Ltd., No. 1, Xianghai Road, (Xiang’An) Act’s provisions limiting the recovery of Notice Pursuant to the National antitrust plaintiffs to actual damages Industrial Zone, Torch Hi-New Zon, Cooperative Research and Production Xiamen, Fujian, 361101, China under specified circumstances. Act of 1993—UHD Alliance, Inc. Specifically, grandcentrix GmbH, TPV International (USA), Inc., 3737 Notice is hereby given that, on May Cologne, GERMANY; Institute for Executive Center Drive, Suite 261, Information Industry (III), Taipei City, Austin, TX 78731 12, 2020, pursuant to Section 6(a) of the National Cooperative Research and TAIWAN; Vasala Oyj, Vantaa, Trend Smart America, Ltd., 2 South Production Act of 1993, 15 U.S.C. 4301 FINLAND, have been added as parties to Pointe Dr., Ste. 152, Lake Forest, CA et seq. (‘‘the Act’’), UHD Alliance, Inc. this venture. 92630 (‘‘UHD Alliance’’) filed written Also, Adups Tech. Co., Ltd., Trend Smart CE Mexico S.R.L. De D.V., notifications simultaneously with the Zhangjiang, Shanghai, PEOPLE’S Sor Juana Ines De La Cruz No. 196202, Attorney General and the Federal Trade REPUBLIC OF CHINA; Communications Tijuana, Baja California 22435, Commission disclosing changes in its Global Certification Inc., Gweishan, Mexico membership. The notifications were Tao-Yuan, TAIWAN; Huawei filed for the purpose of extending the Technologies Co., Ltd Shenzhen, (4) For the investigation so instituted, Act’s provisions limiting the recovery of PEOPLE’S REPUBLIC OF CHINA; Invigo the Chief Administrative Law Judge, antitrust plaintiffs to actual damages Offshore SAL, Beirut, LEBANON; U.S. International Trade Commission, under specified circumstances. Nautes Technology Inc, Anyang-si, shall designate the presiding Specifically, MediaTek, Inc., Hsinchu, Gyeonggido, REPUBLIC OF KOREA; Administrative Law Judge. TAIWAN has become a party to this Open Source Alliance, Jung-gu, Seoul, The Office of Unfair Import venture. Also, Onkyo Corporation, REPUBLIC OF KOREA; Orange SA, Investigations will not be named as a Osaka, JAPAN has withdrawn as a party Bristol, UNITED KINGDOM; Redstone party to this investigation. to this venture. Sunshine (Beijing) Technology Co., Ltd., Haidian District, Beijing, PEOPLE’S Responses to the complaint and the No other changes have been made in REPUBLIC OF CHINA; RETHING IoT notice of investigation must be either the membership or planned Technologies pc, Chalandri, Attiki, submitted by the named respondents in activity of the group research project. GREECE; SigMast Communications, accordance with section 210.13 of the Membership in this group research Bedford, NS, CANADA; Commission’s Rules of Practice and project remains open, and UHD Alliance TeleCommunication Systems, Inc., Procedure, 19 CFR 210.13. Pursuant to intends to file additional written Annapolis, MN; Works Systems, Inc, 19 CFR 201.16(e) and 210.13(a), as notifications disclosing all changes in San Jose, CA; ZTE Corporation, amended in 85 FR 15798 (March 19, membership. Shenzhen, PEOPLE’S REPUBLIC OF 2020), such responses will be On June 17, 2015, UHD Alliance filed CHINA, have withdrawn as parties to considered by the Commission if its original notification pursuant to this venture. received not later than 20 days after the Section 6(a) of the Act. The Department No other changes have been made in date of service by complainants of the of Justice published a notice in the either the membership or planned complaint and the notice of Federal Register pursuant to Section activity of the group research project. investigation. Extensions of time for 6(b) of the Act on July 17, 2015 (80 FR Membership in this group research submitting responses to the complaint 42537). The last notification was filed with project remains open, and OMA intends and the notice of investigation will not the Department on March 10, 2020. A to file additional written notifications be granted unless good cause therefor is notice was published in the Federal disclosing all changes in membership. shown. Register pursuant to Section 6(b) of the On March 18, 1998, OMA filed its Failure of a respondent to file a timely Act on March 20, 2020(85 FR 16133). original notification pursuant to Section response to each allegation in the 6(a) of the Act. The Department of complaint and in this notice may be Suzanne Morris, Justice published a notice in the Federal deemed to constitute a waiver of the Chief, Premerger and Division Statistics, Register pursuant to Section 6(b) of the right to appear and contest the Antitrust Division. Act on December 31, 1998 (63 FR allegations of the complaint and this [FR Doc. 2020–11367 Filed 5–26–20; 8:45 am] 72333). notice, and to authorize the BILLING CODE 4410–11–P The last notification was filed with administrative law judge and the the Department on April 26, 2019. A Commission, without further notice to notice was published in the Federal the respondent, to find the facts to be as DEPARTMENT OF JUSTICE Register pursuant to Section 6(b) of the alleged in the complaint and this notice Antitrust Division Act on May 10, 2019 (84 FR 20660). and to enter an initial determination Suzanne Morris, and a final determination containing Notice Pursuant to the National such findings, and may result in the Chief, Premerger and Division Statistics, Cooperative Research and Production Antitrust Division. issuance of an exclusion order or a cease Act of 1993—Open Mobile Alliance and desist order or both directed against [FR Doc. 2020–11364 Filed 5–26–20; 8:45 am] the respondent. Notice is hereby given that, on May BILLING CODE 4410–11–P 11, 2020, pursuant to Section 6(a) of the By order of the Commission. National Cooperative Research and Issued: May 21, 2020. Production Act of 1993, 15 U.S.C. 4301 DEPARTMENT OF JUSTICE Lisa Barton, et seq. (‘‘the Act’’), Open Mobile Secretary to the Commission. Meeting of the NDCAC Executive Alliance (‘‘OMA’’) filed written Advisory Board [FR Doc. 2020–11360 Filed 5–26–20; 8:45 am] notifications simultaneously with the BILLING CODE 7020–02–P Attorney General and the Federal Trade AGENCY: Justice Department.

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ACTION: Virtual meeting notice. Written Comments: Any member of meeting or indicate your requirements the public may submit written on the online registration form. SUMMARY: The purpose of this notice is comments to the EAB. Written Alice Bardney-Boose, to announce the virtual meeting of the comments must be provided to Ms. Department of Justice’s National Alice Bardney-Boose, DFO, at least Designated Federal Officer, National Domestic Communications Assistance Domestic Communication Assistance Center, seven (7) days in advance of the meeting Executive Advisory Board. Center’s (NDCAC) Executive Advisory so that the comments may be made [FR Doc. 2020–11263 Filed 5–26–20; 8:45 am] Board (EAB). The meeting is being available to EAB members for their called to address the items identified in consideration prior to the meeting. BILLING CODE 4410–02–P the Agenda detailed below. Written comments must be submitted to DATES: The NDCAC EAB virtual meeting [email protected] on or before June 3, DEPARTMENT OF JUSTICE is open to the public, subject to the 2020. [OMB Number 1121–0240] registration requirements detailed In accordance with the FACA, all below. The EAB will meet in open comments shall be made available for Agency Information Collection session from 10:00 a.m. until 1:00 p.m. public inspection. Commenters are not on June 10, 2020. Activities; Proposed Collection required to submit personally Comments Requested; Reinstatement, FOR FURTHER INFORMATION CONTACT: identifiable information (such as name, With Change, of a Previously Inquiries may be addressed to Ms. Alice address, etc.). Nevertheless, if Approved Collection for Which Bardney-Boose, Designated Federal commenters submit personally Approval Has Expired: 2020 Law Officer, National Domestic identifiable information as part of the Enforcement Administrative and Communications Assistance Center, comments, but do not want it made Management Statistics (LEMAS) Department of Justice, by email at available for public inspection, the Survey [email protected] or by phone at (540) phrase ‘‘Personally Identifiable 361–4600. Information’’ must be included in the AGENCY: Bureau of Justice Statistics, SUPPLEMENTARY INFORMATION: first paragraph of the comment. Department of Justice. Agenda: The meeting will be called to Commenters must place all personally ACTION: 30-Day notice. order at 10:00 a.m. by EAB Chairman Al identifiable information not to be made SUMMARY: The Department of Justice Cannon. All EAB members will be available for public inspection in the (DOJ), Office of Justice Programs, introduced and EAB Chairman Cannon first paragraph and identify what Bureau of Justice Statistics, will be will provide remarks. The EAB will: information is to be redacted. Privacy submitting the following information Receive an update and hold a Act Statement: Comments are being collection request to the Office of discussion on the National Domestic collected pursuant to the FACA. Any Management and Budget (OMB) for Communications Assistance Center and personally identifiable information review and approval in accordance with the support it provides to the law included voluntarily within comments, the Paperwork Reduction Act of 1995. enforcement; be provided a briefing on without a request for redaction, will be The proposed information collection the FBI’s future vision of the NDCAC; used for the limited purpose of making was previously published in the Federal receive a briefing from the Manhattan all documents available to the public Register, allowing a 60-day comment District Attorney’s Office; and receive a pursuant to FACA requirements. status report from its Administrative period. Following publication of the 60- Registration: Individuals and entities day notice, BJS received two requests Subcommittee. Note: agenda items are who wish to attend the public meeting subject to change. for the survey instruments and one set are required to pre-register for the of comments. The comments suggested The purpose of the EAB is to provide meeting on-line by clicking the advice and recommendations to the new items to add to the instruments but registration link found at: https:// no changes were made. New items Attorney General or designee, and to the ndcac.fbi.gov/virtual-executive- Director of the NDCAC that promote require cognitive testing which at this advisory-board-meeting-registration. point would result in a significant delay public safety and national security by Registrants will be provided information advancing the NDCAC’s core functions: to launching the survey. on how to access the virtual meeting DATES: Comments are encouraged and Law enforcement coordination with through email. respect to technical capabilities and will be accepted for 30 days until June solutions, technology sharing, industry Privacy Act Statement: The 26, 2020. relations, and implementation of the information requested on the FOR FURTHER INFORMATION CONTACT: Communications Assistance for Law registration form is being collected and Written comments and Enforcement Act (CALEA). The EAB used pursuant to the FACA for the recommendations for the proposed consists of 15 voting members from limited purpose of ensuring accurate information collection should be sent Federal, State, local and tribal law records of all persons present at the within 30 days of publication of this enforcement agencies. Additionally, meeting, which records may be made notice to www.reginfo.gov/public/do/ there are two non-voting members as publicly available. Providing PRAMain. Find this particular follows: A federally-employed attorney information for registration purposes is information collection by selecting assigned full time to the NDCAC to voluntary; however, failure to provide ‘‘Currently under 30-day Review—Open serve as a legal advisor to the EAB, and the required information for registration for Public Comments’’ or by using the the DOJ Chief Privacy Officer or purposes will prevent you from search function. designee to ensure that privacy and civil attending the meeting. SUPPLEMENTARY INFORMATION: Written rights and civil liberties issues are fully Online registration for the meeting comments and suggestions from the considered in the EAB’s must be completed on or before 5:00 public and affected agencies concerning recommendations. The EAB is p.m. (EST) May 27, 2020. Anyone the proposed collection of information composed of eight State, local, and/or requiring special accommodations are encouraged. Your comments should tribal representatives and seven federal should notify Ms. Bardney-Boose at address one or more of the following representatives. least seven (7) days in advance of the four points:

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—Evaluate whether the proposed from the U.S. Congress, Executive Office facility has been indefinitely suspended collection of information is necessary of the President, the U.S. Supreme since March 20, 2020, and timely and for the proper performance of the Court, state officials, international orderly distribution of DOL statistical functions of the Bureau of Justice organizations, researchers, students, the information has been accomplished at Statistics, including whether the media, and others interested in criminal official release time through DOL information will have practical utility; justice statistics. websites, social media channels, and —Evaluate the accuracy of the agency’s (5) An estimate of the total number of email subscription lists. This estimate of the burden of the respondents and the amount of time notification announces the permanent proposed collection of information, estimated for an average respondent to discontinuation of the DOL lock-up including the validity of the respond: An agency-level survey will be facility effective June 3, 2020, regardless methodology and assumptions used; sent to approximately 3,500 LEA of whether the current restrictions in —Evaluate whether and if so how the respondents. At the time of the 60-day place as a result of the COVID–19 quality, utility, and clarity of the notice, the expected burden was about pandemic remain necessary as of that information to be collected can be 2.33 hours per respondent. Based on date. enhanced; and additional analysis of cognitive FOR FURTHER INFORMATION CONTACT: —Minimize the burden of the collection interviewing results, the expected Michael Trupo, Deputy Assistant of information on those who are to burden placed on these respondents is Secretary, Office of Public Affairs, U.S. respond, including through the use of about 2.5 hours. Department of Labor, 200 Constitution (6) An estimate of the total public appropriate automated, electronic, Ave. NW, Washington, DC; 202–693– burden (in hours) associated with the mechanical, or other technological 4676; [email protected]. collection techniques or other forms collection: At the time of the 60-day SUPPLEMENTARY INFORMATION: of information technology, e.g., notice, there was an estimated 8,155 permitting electronic submission of total burden hours associated with this I. Background responses. collection. With the burden update to The Office of Management and Budget about 2.5 hours per respondent, there Overview of this information (OMB) is responsible for the are an estimated 8,750 total burden collection: development and oversight of (1) Type of Information Collection: hours associated with this collection. Government-wide policies, principles, If additional information is required Reinstatement of the Law Enforcement standards, and guidelines concerning contact: Melody Braswell, Department Management and Administrative statistical information presentation and Clearance Officer, United States Statistics (LEMAS) Survey, with dissemination, as well as the timely Department of Justice, Justice changes, a previously approved release of statistical data. OMB has Management Division, Policy and collection for which approval has issued a series of Statistical Policy Planning Staff, Two Constitution expired. Directives (SPDs) to guide agencies in Square, 145 N Street NE, 3E.405A, (2) The Title of the Form/Collection: their dissemination of statistical Washington, DC 20530. 2020 Law Enforcement Management products to ensure timely and equitable and Administrative Statistics Survey. Dated: May 21, 2020. distribution of data to the public. Each (3) The agency form number, if any, Melody Braswell, of these SPDs describes the fundamental and the applicable component of the Department Clearance Officer for PRA, U.S. statistical-system principle of equitable Department sponsoring the collection: Department of Justice. and timely dissemination of statistical The form number for the questionnaire [FR Doc. 2020–11319 Filed 5–26–20; 8:45 am] information to the public. See, e.g., SPD is CJ–44. The applicable component BILLING CODE 4410–18–P No. 1, Fundamental Responsibilities of within the Department of Justice is the Federal Statistical Agencies and Bureau of Justice Statistics, in the Office Recognized Statistical Units (Dec. 2, of Justice Programs. DEPARTMENT OF LABOR 2014) (‘‘The objectivity of the (4) Affected public who will be asked information released to the public is or required to respond, as well as a brief Bureau of Labor Statistics maximized by making information abstract: available on an equitable, policy- Respondents will be general purpose Announcing Discontinuation of the neutral, transparent, timely, and state, county and local law enforcement DOL Lock-Up Facility for Participating punctual basis’’); SPD No. 3, agencies (LEAs), including local and News Media Organizations With Pre- Compilation, Release, and Evaluation of county police departments, sheriff’s Release Access to Statistical Principal Federal Economic Indicators offices, and primary state law Information (Sept. 25, 1985) (emphasizing the enforcement agencies. Since 1987, BJS AGENCY: Bureau of Labor Statistics, importance of releasing Principal has collected information about the Department of Labor. Federal Economic Indicators (PFEIs) to personnel, policies, and practices of law ACTION: Notice. the public in a fair and orderly manner); enforcement agencies via the Law SPD No. 4, Release and Dissemination Enforcement Management and SUMMARY: The Department of Labor of Statistical Products Produced by Administrative Statistics (LEMAS) (DOL) plans to discontinue use of the Federal Statistical Agencies (Mar. 7, survey. This core survey, which has lock-up facility currently available for 2008) (‘‘Statistical agencies must ensure been administered every 4 to 6 years, participating news media organizations that all users have equitable and timely has been used to produce nationally to access statistical information prior to access to data that are disseminated to representative estimates on the official release time. This Federal the public.’’). In short, equitable and demographic characteristics of sworn Register Notice supersedes the previous timely dissemination of statistical personnel, hiring practices, operations, Notice issued on February 7, 2020, information is a core principle of equipment, technology, and agency which announced the DOL’s intent to Federal statistical policy. policies and procedures. BJS plans to eliminate use of electronic devices in Since the mid-1980s, consistent with publish this information in reports and the lock-up room. As a result of the these SPDs, DOL agencies have reference it when responding to queries COVID–19 pandemic, use of the lock-up provided pre-release data access to news

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organizations, as a courtesy, under strict high speed data feeds of economic data ensure fairness in the dissemination of embargoes (known as ‘‘lock-ups’’) for formatted for computerized algorithmic statistical information, DOL plans to PFEIs. PFEIs are a set of designated trading. Because these news organizations permanently discontinue use of the DOL economic data series (e.g., the have pre-release access, they are able to pre- lock-up facility starting on June 3, 2020. load the data . . . allowing their clients to get Employment Situation or Consumer this information faster than the general After that date, regardless of any Price Index) that have significant public, which has to wait to download the restrictions that may remain in place as commercial value and may affect the data after it gets posted to the Department of a result of the COVID–19 pandemic, movement of commodity and financial Labor websites. DOL will no longer provide credentialed markets upon release. DOL, in its The aforementioned report further press early access to the economic data discretion, has employed lock-ups for recommends that BLS and ETA ‘‘. . . under embargo conditions in a lock-up. the release of limited non-PFEI data (i.e., implement a strategy designed to Instead, data will be released to the Unemployment Insurance Weekly eliminate any competitive advantage general public all at once, through Claims). Although not required to do so, that news organizations present in the online publication. The purpose of this DOL in 1988 constructed a special lock- lock-up and/or their clients may have; action is to ‘‘ensure that all users have up facility to provide pre-release access or, absent a viable solution, consider equitable and timely access to data that to news media organizations. DOL took discontinuing the use of the press lock- are disseminated to the public,’’ as steps to enhance the security of the up that provides news organizations noted in OMB SPD No. 4. lock-up facility, including in 1992 and pre-release access.’’ Some media lock- The previously proposed policy again in 2011–2012. These lock-ups up attendees continue to post online change to suspend the use of electronic have provided participating media advertisements claiming that their devices in the lock-up room (see 85 FR organizations a period of time (typically clients are advantaged by their lock-up 7333), was designed to retain the 30 minutes) to review data prior to the attendance.1 media’s ability to publish accurate and official release time. At the official To protect the integrity of our data informed stories shortly after the release time, DOL has opened the releases and to ensure dissemination of embargo was lifted. During the communication lines within the facility, key economic data in an equitable, suspension of the media lock-up room allowing the press to transmit their timely, secure, and cost-effective for the ongoing COVID–19 pandemic, articles or tables of data to the public. manner, as of June 3, 2020, DOL will however, the media demonstrated their For many years, dissemination permanently discontinue use of the ability to produce informed and through the lock-up process served as lock-up facility, regardless of whether accurate articles within minutes of the one of several effective methods to assist the restrictions that are currently in electronic release to the BLS website the government in getting information to place as a result of the COVID–19 despite not having early access to the the public. But today, with increased pandemic remain necessary as of that data at all. communication and technology date. Discontinuing use of the lock-up Furthermore, DOL invests significant capabilities utilized by the government, facility eliminates the risk of premature personnel and financial resources to the media, and the general public, this disclosure of the data by the press or as administer and staff the lock-up facility, particular method is no longer necessary a result of the lock-up embargo process, ensure that data products are created and discontinuation of the lock-up best and eliminates the risk of providing an and transported to the lock-up facility, ensures the equitable and timely unfair competitive advantage to lock-up and secure the lock-up facility. dissemination of statistical information participants and their clients compared Discontinuing lock-ups, as opposed to consistent with OMB’s guidance. to the rest of the public due to the merely eliminating use of electronic Continuing security, resource, and preparation time provided by the devices, will enable DOL to cease these equity concerns also outweigh any media’s early access to the data. BLS expenditures while also eliminating benefits of the current process. and ETA will continue to make their entirely any possibility of a breach from DOL’s Inspector General has noted data available to the general public the lock-up room. As explained in more concerns with the current press lock-up immediately upon their 8:30AM Eastern detail below, the recent COVID–19 process, including in reports dated Time release through the Web and other experience demonstrates that DOL can January 2, 2014 (17–14–001–03–315) sources. eliminate the overhead and risk of lock- and March 25, 2016 (17–16–001–01– up rooms altogether without degrading 001) and in every subsequent Semi- II. Action the quality or timeliness of media Annual OIG Report to Congress. As a result of the COVID–19 coverage. Specifically, DOL Inspector General pandemic, the DOL lock-up facility is At the appropriate scheduled times, Report 17–14–001–03–315 states that currently closed, and will remain closed BLS and ETA will provide access to the lock-up ‘‘unintentionally creates an at least through June 3, 2020. In an effort official news releases on the agency unfair competitive advantage for certain to protect the integrity of our data and websites. In addition, the agencies will news organizations and their clients’’: issue releases through social media and 1 to email subscribers. Agencies will Pre-release access of DOL-generated For example, as recently as May 12, 2020, the Associated Press advertised on their event-driven economic data is intended to serve the continue to respond to questions about data page that users can ‘‘[g]et the lowest-latency the data from the public, including the general public by ensuring that news reports delivery of economic release from Washington DC about the data are accurate. To that end, the lock-ups’’ and that their ‘‘low-latency delivery of media, following the releases. media are given access to the data in advance economic releases, coupled with [their] machine- III. Necessity of Action of the public release to facilitate their ability readable format of [their] entire text news output, to analyze and ask questions about the data gives firms the data they need to make informed, When DOL first used embargoed data as they prepare their news stories. However, split-second decisions.’’ See Associated Press, releases in the mid-1980s, media Microseconds Matter, https://www.ap.org/discover/ the intended purpose of ensuring accurate dissemination was an equitable and news reports must be weighed against the event-driven-data (last visited May 12, 2020). See also Dow Jones, Calendar Live, https:// timely method to get data to the public. inequitable trading advantage that a lock-up professional.dowjones.com/newswires/calendar- Today, technology and the internet can potentially create. Several news live/ (last visited May 12, 2020) (advertising that organizations that participate in the DOL they can provide ‘‘[s]ub-second updates on actual permit the public and interested data press lock-up are able to profit from their data from government lockups, banks, industry, and users to obtain releases for themselves. presence in the lock-up by selling, to traders, trade groups’’). However, unlike media organizations in

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the lock-up facility, internet users are to the public only slightly later—and, in http://www.msha.gov/regsinfo.htm or not allowed to digest data 30 minutes at least one case, actually earlier—than http://www.regulations.gov [Docket before the official release time. Internet they were a month earlier when a lock- Number: MSHA–2018–0015]. users are also disadvantaged relative to up was held. Given this success over the Email Notification: To subscribe to lock-up participants to the extent that past two months, DOL now believes it receive email notification when MSHA internet postings may lag slightly can continue to disseminate the data to publishes rulemaking documents in the behind lock-up transmissions. the public, including the media, in a Federal Register, go to https:// Developments in high-speed algorithmic timely manner. DOL will therefore www.msha.gov/subscriptions. trading technology have also raised discontinue the use of the lock-up FOR FURTHER INFORMATION CONTACT: concerns about the possible impact of facility to allow all parties, including Roslyn B. Fontaine, Acting Director, unequal access to sensitive economic the media, commercial entities, and the Office of Standards, Regulations, and data. As discussed above, DOL’s public, equitable and timely access to Variances, MSHA, at fontaine.roslyn@ Inspector General has issued multiple our most important statistical data. dol.gov (email), 202–693–9440 (voice), reports with findings that the current IV. Result or 202–693–9441 (fax). These are not press lock-up ‘‘creates an unfair toll-free numbers. competitive advantage for certain news By permanently discontinuing the SUPPLEMENTARY INFORMATION: organizations and their clients.’’ lock-up facility as of June 3, 2020, DOL It was never the intent of DOL in intends to protect the integrity of its Cancellation of Program Policy Letter establishing the lock-up facility to data and enable dissemination of news provide a financial windfall to paying On July 29, 2019, MSHA published in releases in an equitable, secure, and the Federal Register a PPL to clarify clients of credentialed media cost-effective manner so that all organizations, or to allow credentialed requirements in 30 CFR 57.11050, information is available to the public Escapeways and Refuges, together with media organizations to profit off of the and the media at the official release privilege of early access to government a request for public comment (84 FR time. 36623). The PPL was intended to assist data. DOL does not wish to facilitate The Commerce Department’s Bureau MNM mine operators with guidance on those practices. Although DOL of Economic Analysis and U.S. Census the placement of escapeways and understands that certain high-frequency Bureau are also committed to the secure, refuges that underground miners need trading firms may retain some advantage timely, and equitable release of all data. to use in emergency situations. On in faster ingestion and downloading of As such, for the reasons stated in this October 10, 2019, MSHA also held a government data even after the lock-up notice, both Bureaus will also public stakeholder meeting to ensure process is discontinued, DOL itself will discontinue embargoed media lock-ups that the public would have additional no longer have any role in facilitating at the Department of Labor’s facility and opportunities to provide feedback. After such an advantage. will continue to release their data reviewing all the comments received It is no longer necessary to use the securely through their websites. credentialed news media to help the during both the public comment period Department disseminate DOL’s Signed at Washington, DC, this 19th day of and the stakeholder meeting, MSHA has May 2020. statistical data widely because the now determined that the clarification in internet permits the public and William W. Beach, this PPL is not needed. Therefore, interested users to obtain releases for Commissioner of Labor Statistics. MSHA cancels the PPL. themselves. Discontinuing the lock-up [FR Doc. 2020–11297 Filed 5–26–20; 8:45 am] (Authority: 30 U.S.C. 811) will not disadvantage the lock-up BILLING CODE 4510–24–P participants; it will merely remove the David G. Zatezalo, advantage they currently enjoy. In the Assistant Secretary of Labor for Mine Safety time since the OIG recommendations DEPARTMENT OF LABOR and Health Administration. were issued, BLS and ETA have devoted [FR Doc. 2020–11300 Filed 5–26–20; 8:45 am] significant resources to introducing Mine Safety and Health Administration BILLING CODE 4520–43–P improved technologies to ensure data [Docket No. MSHA–2018–0015] are posted and accessible on their websites immediately following the Escapeways and Refuges in DEPARTMENT OF LABOR official release time. When the COVID– Underground Metal and Nonmetal Occupational Safety and Health 19 pandemic required the closure of the Mines Administration media lock-up in March of 2020, these AGENCY: Mine Safety and Health improved technologies allowed BLS and Administration, Labor. [Docket No. OSHA–2009–0035] ETA to disseminate the data immediately and widely to the public ACTION: Notice of cancellation; Program Policy Letter. The Ethylene Oxide (EtO) Standard; without incident and without providing Extension of the Office of Management early access to lock-up participants. SUMMARY: The Mine Safety and Health and Budget’s (OMB) Approval of Specifically, the March Employment Administration (MSHA) cancels a Information Collection (Paperwork) Situation report, released on April 3, Program Policy Letter (PPL) that was Requirements 2020 without a lock-up, demonstrates issued on July 29, 2019 to provide AGENCY: that the BLS website can serve all guidance on escapeways and refuges Occupational Safety and Health interested users in the seconds after used by underground metal and Administration (OSHA), Labor. release time with little or no nonmetal miners in emergency ACTION: Request for public comments. degradation in response time and a situations. negligible error rate. The same holds SUMMARY: OSHA solicits public true for the Unemployment Insurance DATES: Cancellation as of May 27, 2020. comments concerning the proposal to Weekly Claims Reports issued since ADDRESSES: extend the Office of Management and March 20, 2020. Stories in the press Federal Register Publications: Access Budget’s (OMB) approval of the covering the March data were available rulemaking documents electronically at information collection requirements

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specified in the Ethylene Oxide (EtO) SUPPLEMENTARY INFORMATION: II. Special Issues for Comment Standard. I. Background OSHA has a particular interest in DATES: Comments must be submitted comments on the following issues: (postmarked, sent, or received) by July The Department of Labor, as part of • Whether the proposed information 27, 2020. the continuing effort to reduce collection requirements are necessary ADDRESSES: paperwork and respondent (i.e., for the proper performance of the Electronically: You may submit employer) burden, conducts a agency’s functions, including whether comments and attachments preclearance consultation program to the information is useful; electronically at http:// provide the public with an opportunity • The accuracy of OSHA’s estimate of www.regulations.gov, which is the to comment on proposed and the burden (time and costs) of the Federal e-Rulemaking Portal. Follow the continuing information collection information collection requirements, instructions online for submitting requirements in accordance with the including the validity of the comments. Paperwork Reduction Act (PRA) (44 methodology and assumptions used; Facsimile: If your comments, U.S.C. 3506(c)(2)(A)). This program • The quality, utility, and clarity of including attachments, are not longer ensures that information is in the the information collected; and than 10 pages you may fax them to the desired format, reporting burden (time • Ways to minimize the burden on OSHA Docket Office at (202) 693–1648. and costs) is minimal, collection employers who must comply; for Mail, hand delivery, express mail, instruments are clearly understood, and example, by using automated or other messenger, or courier service: When OSHA’s estimate of the information technological information collection using this method, you must submit collection burden is accurate. The and transmission techniques. your comments and attachments to the Occupational Safety and Health Act of OSHA Docket Office, Docket No. III. Proposed Actions 1970 (the OSH Act) (29 U.S.C. 651 et OSHA–2009–0035, Occupational Safety OSHA is requesting that OMB extend seq.) authorizes information collection and Health Administration, U.S. the approval of the collection of by employers as necessary or Department of Labor, Room N–3653, information (paperwork) requirements appropriate for enforcement of the OSH 200 Constitution Avenue NW, contained in the Ethylene Oxide Act or for developing information Washington, DC 20210. Deliveries Standard. There is an overall adjustment regarding the causes and prevention of (hand, express mail, messenger, and increase in burden hours for this ICR. courier service) are accepted during the occupational injuries, illnesses, and The burden hours have increased a total Docket Office’s normal business hours, accidents (29 U.S.C. 657). The OSH Act of 3,377 hours (from 27,880 hours to 10:00 a.m. to 3:00 p.m., ET. also requires that OSHA obtain such 31,257 hours). The adjustment increase Instructions: All submissions must information with minimum burden is primarily due to estimated number of include the agency name and the OSHA upon employers, especially those establishments covered by the standard. docket number (OSHA–2009–0035) for operating small businesses, and to Type of Review: Extension of a the Information Collection Request reduce to the maximum extent feasible currently approved collection. (ICR). All comments, including any unnecessary duplication of efforts in Title: Ethylene Oxide (EtO) Standard personal information you provide, such obtaining information (29 U.S.C. 657). (29 CFR 1910.1047). as social security number and date of The EtO Standard (29 CFR 1910.1047) OMB Number: 1218–0108. birth, are placed in the public docket specifies a number of paperwork Affected Public: Businesses or other without change, and may be made requirements. The following is a brief for-profits. available online at http:// description of the collection of Number of Respondents: 2,085. www.regulations.gov. For further information requirements contained in Frequency of Response: Initially, information on submitting comments the standard. annually; on occasion. see the ‘‘Public Participation’’ heading Total Responses: 112,016. The information collection in the section of this notice titled Average Time per Response: Various. requirements specified in the Ethylene SUPPLEMENTARY INFORMATION. Estimated Total Burden Hours: Oxide Standard protect workers from Docket: To read or download 31,257. the adverse health effects that may comments or other material in the Estimated Cost (Operation and result from occupational exposure to docket, go to http://www.regulations.gov Maintenance): $4,971,000. or the OSHA Docket Office at the above ethylene oxide. The principal address. All documents in the docket information collection requirements in IV. Public Participation—Submission of (including this Federal Register notice) the EtO Standard include conducting Comments on This Notice and Internet are listed in the http:// worker exposure monitoring, notifying Access to Comments and Submissions www.regulations.gov index; however, workers of the exposure, implementing You may submit comments in some information (e.g., copyrighted a written compliance program, and response to this document as follows: material) is not publicly available to implementing medical surveillance of (1) Electronically at http:// read or download from the website. All workers. Also, the examining physician www.regulations.gov, which is the submissions, including copyrighted must provide specific information to Federal e-Rulemaking Portal; (2) by material, are available for inspection ensure that workers receive a copy of facsimile; or (3) by hard copy. All and copying at the OSHA Docket Office. their medical examination results. The comments, attachments, and other You also may contact Theda Kenney at employer must maintain exposure- material must identify the agency name the below phone number to obtain a monitoring and medical records for and the OSHA docket number for this copy of the ICR. specific periods, and provide access to ICR (Docket No. OSHA–2009–0035). FOR FURTHER INFORMATION CONTACT: these records by OSHA, the National You may supplement electronic Theda Kenney or Seleda Perryman, Institute for Occupational Safety and submissions by uploading document Directorate of Standards and Guidance, Health, the affected workers, and their files electronically. If you wish to mail OSHA, U.S. Department of Labor; authorized representatives and other additional materials in reference to an telephone (202) 693–2222. designated parties. electronic or facsimile submission, you

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must submit them to the OSHA Docket NUCLEAR REGULATORY for Docket ID NRC–2019–0182. A copy Office (see the section of this notice COMMISSION of the collection of information and ADDRESSES related instructions may be obtained titled ). The additional [NRC–2019–0182] materials must clearly identify your without charge by accessing Docket ID electronic comments by your name, NRC–2019–0182 on this website. Information Collection: License and • date, and the docket number so the Radiation Safety Requirements for NRC’s Agencywide Documents agency can attach them to your Well-Logging Access and Management System comments. (ADAMS): You may obtain publicly- AGENCY: Nuclear Regulatory available documents online in the Because of security procedures, the Commission. ADAMS Public Documents collection at use of regular mail may cause a ACTION: Renewal of existing information https://www.nrc.gov/reading-rm/ significant delay in the receipt of collection; request for comment. adams.html then select ‘‘Begin Web- comments. For information about based ADAMS Search.’’ For problems security procedures concerning the SUMMARY: The U.S. Nuclear Regulatory with ADAMS, please contact the NRC’s delivery of materials by hand, express Commission (NRC) invites public Public Document Room (PDR) reference delivery, messenger, or courier service, comment on the renewal of Office of staff at 1–800–397–4209, 301–415–4737, please contact the OSHA Docket Office Management and Budget (OMB) or by email to [email protected]. at (202) 693–2350, (TTY (877) 889– approval for an existing collection of The supporting statement is available in 5627). information. The information collection ADAMS under Accession Comments and submissions are is entitled, ‘‘License and Radiation ML19298C513. Safety Requirements for Well-Logging.’’ • NRC’s Clearance Officer: A copy of posted without change at http:// the collection of information and related www.regulations.gov. Therefore, OSHA DATES: Submit comments by July 27, 2020. Comments received after this date instructions may be obtained without cautions commenters about submitting charge by contacting NRC’s Clearance personal information such as your social will be considered if it is practical to do so, but the Commission is able to ensure Officer, David Cullison, Office of the security number and date of birth. consideration only for comments Chief Information Officer, U.S. Nuclear Although all submissions are listed in received on or before this date. Regulatory Commission, Washington, the http://www.regulations.gov index, DC 20555–0001; telephone: 301–415– ADDRESSES: You may submit comments some information (e.g., copyrighted 2084; email: Infocollects.Resource@ by any of the following methods: material) is not publicly available to nrc.gov. • Federal Rulemaking website: Go to read or download from this website. All https://www.regulations.gov and search B. Submitting Comments submissions, including copyrighted for Docket ID NRC–2019–0182. For Please include Docket ID NRC–2019– material, are available for inspection technical questions, contact the and copying at the OSHA Docket Office. 0182 in the subject line of your individual listed in the FOR FURTHER comment submission, in order to ensure Information on using the http:// INFORMATION CONTACT section of this www.regulations.gov website to submit that the NRC is able to make your document. comment submission available to the comments and access the docket is • Mail comments to: David Cullison, available at the website’s ‘‘User Tips’’ public in this docket. Office of the Chief Information Officer, The NRC cautions you not to include link. Contact the OSHA Docket Office Mail Stop: T–6 A10M, U.S. Nuclear identifying or contact information in for information about materials not Regulatory Commission, Washington, comment submissions that you do not available from the website, and for DC 20555–0001. want to be publicly disclosed in your assistance in using the internet to locate For additional direction on obtaining comment submission. The NRC will docket submissions. information and submitting comments, post all comment submissions at https:// see ‘‘Obtaining Information and V. Authority and Signature www.regulations.gov as well as enter the Submitting Comments’’ in the comment submissions into ADAMS, Loren Sweatt, Principal Deputy SUPPLEMENTARY INFORMATION section of and the NRC does not routinely edit Assistant Secretary of Labor for this document. comment submissions to remove Occupational Safety and Health, FOR FURTHER INFORMATION CONTACT: identifying or contact information. directed the preparation of this notice. David Cullison, Office of the Chief If you are requesting or aggregating Information Officer, U.S. Nuclear comments from other persons for The authority for this notice is the Regulatory Commission, Washington, submission to the NRC, then you should Paperwork Reduction Act of 1995 (44 DC 20555–0001; telephone: 301–415– inform those persons not to include U.S.C. 3506 et seq.) and Secretary of 2084; email: Infocollects.Resource@ identifying or contact information that Labor’s Order No. 1–2012 (77 FR 3912). nrc.gov. they do not want to be publicly Signed at Washington, DC, on May 19, SUPPLEMENTARY INFORMATION: disclosed in their comment submission. 2020. Your request should state that the NRC Loren Sweatt, I. Obtaining Information and does not routinely edit comment Submitting Comments Principal Deputy Assistant Secretary of Labor submissions to remove such information for Occupational Safety and Health. A. Obtaining Information before making the comment [FR Doc. 2020–11299 Filed 5–26–20; 8:45 am] submissions available to the public or Please refer to Docket ID NRC–2019– entering the comment into ADAMS. BILLING CODE 4510–26–P 0182 when contacting the NRC about the availability of information for this II. Background action. You may obtain publicly- In accordance with the Paperwork available information related to this Reduction Act of 1995 (44 U.S.C. action by any of the following methods: Chapter 35), the NRC is requesting • Federal Rulemaking website: Go to public comment on its intention to https://www.regulations.gov and search request the OMB’s approval for the

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information collection summarized NUCLEAR REGULATORY adams.html. To begin the search, select below. COMMISSION ‘‘Begin Web-based ADAMS Search.’’ For 1. The title of the information problems with ADAMS, please contact collection: 10 CFR part 39, ‘‘License and [NRC–2019–0171] the NRC’s Public Document Room (PDR) Radiation Safety Requirements for Well- Information Collection: Licenses for reference staff at 1–800–397–4209, 301– Logging’’. Radiography and Radiation Safety 415–4737, or by email to pdr.resource@ 2. OMB approval number: 3150–0130. Requirements for Radiographic nrc.gov. The supporting statement and 3. Type of submission: Extension. Operations burden spreadsheet are available in 4. The form number, if applicable: ADAMS under Accession Nos. N/A. AGENCY: Nuclear Regulatory ML20105A073 and ML19311C796. 5. How often the collection is required Commission. • NRC’s Clearance Officer: A copy of or requested: Applications for new ACTION: Notice of submission to the the collection of information and related licenses and amendments may be Office of Management and Budget; instructions may be obtained without submitted at any time (on occasion). request for comment. charge by contacting the NRC’s Applications for renewal are submitted Clearance Officer, David Cullison, every 15 years. Reports are submitted as SUMMARY: The U.S. Nuclear Regulatory Office of the Chief Information Officer, events occur. Commission (NRC) has recently U.S. Nuclear Regulatory Commission, 6. Who will be required or asked to submitted a request for renewal of an Washington, DC 20555–0001; telephone: respond: Applicants for and holders of existing collection of information to the 301–415–2084; email: specific licenses authorizing the use of Office of Management and Budget [email protected]. licensed radioactive material for well (OMB) for review. The information B. Submitting Comments logging. collection is entitled, ‘Licenses for 7. The estimated number of annual Radiography and Radiation Safety The NRC cautions you not to include responses: 3,804. Requirements for Radiographic identifying or contact information in 8. The estimated number of annual Operations.’ ’’ comment submissions that you do not respondents: 180. want to be publicly disclosed in your DATES: Submit comments by June 26, 9. The estimated number of hours comment submission. All comment 2020. Comments received after this date needed annually to comply with the submissions are posted at https:// will be considered if it is practical to do information collection requirement or www.regulations.gov and entered into so, but the Commission is able to ensure request: 40,454. ADAMS. Comment submissions are not consideration only for comments 10. Abstract: Part 39 of Title 10 of the routinely edited to remove identifying received on or before this date. Code of Federal Regulations (10 CFR), or contact information. establishes radiation safety ADDRESSES: Written comments and If you are requesting or aggregating requirements for the use of radioactive recommendations for the proposed comments from other persons for material for well logging. The information collection should be sent submission to the OMB, then you information in the applications, reports within 30 days of publication of this should inform those persons not to and records is used by the NRC staff to notice to https://www.reginfo.gov/ include identifying or contact ensure that the health and safety of the public/do/PRAMain. Find this information that they do not want to be public is protected and that licensee particular information collection by publicly disclosed in their comment possession and use of source and selecting ‘‘Currently under Review— submission. Your request should state byproduct material is in compliance Open for Public Comments’’ or by using that comment submissions are not with license and regulatory the search function. routinely edited to remove such requirements. FOR FURTHER INFORMATION CONTACT: information before making the comment David Cullison, NRC Clearance Officer, submissions available to the public or III. Specific Requests for Comments U.S. Nuclear Regulatory Commission, entering the comment into ADAMS. The NRC is seeking comments that Washington, DC 20555–0001; telephone: II. Background address the following questions: 301–415–2084; email: 1. Is the proposed collection of [email protected]. Under the provisions of the Paperwork Reduction Act of 1995 (44 information necessary for the NRC to SUPPLEMENTARY INFORMATION: properly perform its functions? Does the U.S.C. Chapter 35), the NRC recently information have practical utility? I. Obtaining Information and submitted a request for renewal of an 2. Is the estimate of the burden of the Submitting Comments existing collection of information to information collection accurate? A. Obtaining Information OMB for review entitled, ‘‘10 CFR part 3. Is there a way to enhance the 34, ‘Licenses for Radiography and quality, utility, and clarity of the Please refer to Docket ID NRC–2019– Radiation Safety Requirements for information to be collected? 0171 when contacting the NRC about Radiographic Operations.’ ’’ The NRC 4. How can the burden of the the availability of information for this hereby informs potential respondents information collection on respondents action. You may obtain publicly- that an agency may not conduct or be minimized, including the use of available information related to this sponsor, and that a person is not automated collection techniques or action by any of the following methods: required to respond to, a collection of • other forms of information technology? Federal Rulemaking website: Go to information unless it displays a https://www.regulations.gov and search currently valid OMB control number. Dated: May 21, 2020. for Docket ID NRC–2019–0171. The NRC published a Federal For the Nuclear Regulatory Commission. • NRC’s Agencywide Documents Register notice with a 60-day comment David C. Cullison, Access and Management System period on this information collection on NRC Clearance Officer, Office of the Chief (ADAMS): You may obtain publicly- February 5, 2020 (85 FR 6585). Information Officer. available documents online in the 1. The title of the information [FR Doc. 2020–11315 Filed 5–26–20; 8:45 am] ADAMS Public Documents collection at collection: ‘‘10 CFR part 34, ‘Licenses BILLING CODE 7590–01–P https://www.nrc.gov/reading-rm/ for Radiography and Radiation Safety

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Requirements for Radiographic Week of June 8, 2020—Tentative NUCLEAR REGULATORY Operations.’ ’’ COMMISSION 2. OMB approval number: 3150–0007. There are no meetings scheduled for 3. Type of submission: Extension. the week of June 8, 2020. 4. The form number if applicable: [NRC–2020–0124] Week of June 15, 2020—Tentative N/A. Information Collection: Part 20 5. How often the collection is required There are no meetings scheduled for Respirator Protection Exemption or requested: Applications for new the week of June 15, 2020. Request for Non-Power Reactors/RTR licenses and amendments may be and Part 20 Respirator Protection submitted at any time (on occasion). Week of June 22, 2020—Tentative Exemption Request for Power Applications for renewal are submitted Reactors Online Forms every 15 years. Reports are submitted as There are no meetings scheduled for the week of June 22, 2020. events occur. AGENCY: Nuclear Regulatory 6. Who will be required or asked to Week of June 29, 2020—Tentative Commission. respond: Applicants for and holders of specific licenses authorizing the use of There are no meetings scheduled for ACTION: Notice of submission to the licensed radioactive material for the week of June 29, 2020. Office of Management and Budget radiography. (OMB) for emergency processing; 7. The estimated number of annual CONTACT PERSON FOR MORE INFORMATION: request for comment. responses: 3,296. For more information or to verify the 8. The estimated number of annual status of meetings, contact Denise SUMMARY: The U.S. Nuclear Regulatory respondents: 607. McGovern at 301–415–0681 or via email Commission (NRC) invites public 9. An estimate of the total number of at [email protected]. The comment on our request for emergency hours needed annually to comply with schedule for Commission meetings is review for and OMB approval of the the information collection requirement subject to change on short notice. information collection that is or request: 270,760 (5,213.5 reporting + The NRC Commission Meeting summarized below. The information 241,448.98 recordkeeping + 24,097.9 collection is entitled, ‘‘Part 20 Schedule can be found on the internet third party disclosure). Respirator Protection Exemption at: https://www.nrc.gov/public-involve/ 10. Abstract: Part 34 of Title 10 of the Request for Non-Power Reactors/RTR public-meetings/schedule.html. Code of Federal Regulations, establishes And Part 20 Respirator Protection radiation safety requirements for the use The NRC provides reasonable Exemption Request for Power Reactors of radioactive material in industrial accommodation to individuals with Online Forms’’. radiography. The information in the disabilities where appropriate. If you DATES: Submit comments by July 27, applications, reports and records is used need a reasonable accommodation to 2020. Comments received after this date by the NRC staff to ensure that the participate in these public meetings or health and safety of the public is will be considered if it is practical to do need this meeting notice or the protected and that licensee possession so, but the Commission is able to ensure transcript or other information from the and use of source and byproduct consideration only for comments material is in compliance with license public meetings in another format (e.g., received on or before this date. and regulatory requirements. braille, large print), please notify Anne Silk, NRC Disability Program Specialist, ADDRESSES: You may submit comments Dated: May 21, 2020. at 301–287–0745, by videophone at by any of the following methods: For the Nuclear Regulatory Commission. 240–428–3217, or by email at • Federal Rulemaking Website: Go to David C. Cullison, [email protected]. Determinations on https://www.regulations.gov/ and search NRC Clearance Officer, Office of the Chief requests for reasonable accommodation for Docket ID NRC–2020–0124. For Information Officer. will be made on a case-by-case basis. technical questions, contact the [FR Doc. 2020–11311 Filed 5–26–20; 8:45 am] individual listed in the FOR FURTHER Members of the public may request to BILLING CODE 7590–01–P INFORMATION CONTACT section of this receive this information electronically. document. If you would like to be added to the • Mail comments to: David Cullison, NUCLEAR REGULATORY distribution, please contact the Nuclear Office of the Chief Information Officer, COMMISSION Regulatory Commission, Office of the Mail Stop: T–6 A10M, U.S. Nuclear Secretary, Washington, DC 20555 (301– [NRC–2020–0001] Regulatory Commission, Washington, 415–1969), or by email at DC 20555–0001. Sunshine Act Meetings [email protected] or Tyesha.Bush@ nrc.gov. For additional direction on obtaining TIME AND DATE: Weeks of May 25, June information and submitting comments, The NRC is holding the meetings 1, 8, 15, 22, 29, 2020. see ‘‘Obtaining Information and under the authority of the Government PLACE: Submitting Comments’’ in the Commissioners’ Conference in the Sunshine Act, 5 U.S.C. 552b. Room, 11555 Rockville Pike, Rockville, SUPPLEMENTARY INFORMATION section of Maryland. Dated: May 21, 2020. this document. STATUS: Public. For the Nuclear Regulatory Commission. FOR FURTHER INFORMATION CONTACT: David Cullison, Office of the Chief Week of May 25, 2020 Denise L. McGovern Policy Coordinator, Office of the Secretary. Information Officer, U.S. Nuclear There are no meetings scheduled for [FR Doc. 2020–11392 Filed 5–22–20; 11:15 am] Regulatory Commission, Washington, the week of May 25, 2020. DC 20555–0001; telephone: 301–415– BILLING CODE 7590–01–P Week of June 1, 2020—Tentative 2084; email: Infocollects.Resource@ nrc.gov. There are no meetings scheduled for the week of June 1, 2020. SUPPLEMENTARY INFORMATION:

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I. Obtaining Information and inform those persons not to include information collection requirement or Submitting Comments identifying or contact information that request: 120. they do not want to be publicly A. Obtaining Information 10. Abstract: The NRC requested an disclosed in their comment submission. emergency review of this information Please refer to Docket ID NRC–2020– Your request should state that the NRC collection in order to add this form to 0124 when contacting the NRC about does not routinely edit comment the previously approved information the availability of information for this submissions to remove such information collection OMB Control Number 3150– action. You may obtain publicly- before making the comment 0014 for a period of 6 months. The available information related to this submissions available to the public or purpose of this information collection is action by any of the following methods: entering the comment into ADAMS. to introduce the Part 20 Respirator • Federal Rulemaking Website: Go to Protection Exemption Request for Non- https://www.regulations.gov/ and search II. Background Power Reactors/RTR and the Part 20 for Docket ID NRC–2020–0124. A copy We are required to publish this notice Respirator Protection Exemption of the collection of information and in the Federal Register under the Request for Power Reactors Online related instructions may be obtained provisions of the Paperwork Reduction Forms that simplifies the filing the without charge by accessing Docket ID Act of 1995 (44 U.S.C. Chapter 35). In exemption requests because the existing NRC–2020–0124 on this website. compliance with the requirement of • NRC’s Agencywide Documents system may be too burdensome for section 3506(c)(2)(A) of the Paperwork licensees under current conditions. Access and Management System Reduction Act of 1995, we have (ADAMS): You may obtain publicly- Under the existing collection under submitted to the Office of Management OMB Control No. 3150–0014, licensees available documents online in the and Budget (OMB) the following ADAMS Public Documents collection at are already able to seek exemptions requirements for emergency review. We from the requirements of 10 CFR part https://www.nrc.gov/reading-rm/ are requesting an emergency review adams.html. To begin the search, select 20, Standards for Protection Against because the collection of this Radiation. This information collection ‘‘Begin Web-based ADAMS Search.’’ For information is needed before the problems with ADAMS, please contact only addresses the incremental burden expiration of the normal time limits change to this existing clearance due to the NRC’s Public Document Room (PDR) under OMB’s regulations under section reference staff at 1–800–397–4209, 301– the form and not the total burden for the 1320.13 of title 5 of the Code of Federal clearance. 415–4737, or by email to pdr.resource@ Regulations (CFR). We cannot nrc.gov. A copy of the collection of reasonably comply with the normal 10 CFR part 20 contains specific information and related instructions clearance procedures because an requirements for respiratory protection. may be obtained without charge by unanticipated event has occurred, as Due to the impacts of the COVID–19 accessing ADAMS Accession Nos. stated in 5 CFR 1320.13(a)(2)(ii). This public health emergency (PHE), the NRC ML20141L572 and ML20141L573. The information collection only addresses will also consider exemption requests supporting statement is available in the incremental burden change to an for the medical evaluation frequency ADAMS under Accession No. existing clearance and not the total and fit-testing frequency requirements ML20141L524. burden for the clearance. specified in 10 CFR 20.1703(c)(5)(iii) • NRC’s Clearance Officer: A copy of 1. The title of the information and 10 CFR 20.1703(c)(6); these the collection of information and related collection: Part 20 Respirator Protection exemptions would allow delay of these instructions may be obtained without Exemption Request for Non-Power requirements during the COVID–19 PHE charge by contacting NRC’s Clearance Reactors/RTR And Part 20 Respirator as allowed by 10 CFR 20.2301 Officer, David Cullison, Office of the Protection Exemption Request for Power ‘‘Applications for exemptions.’’ Chief Information Officer, U.S. Nuclear Reactors Online Forms. III. Specific Requests for Comments Regulatory Commission, Washington, 2. OMB approval number: 3150–0014. DC 20555–0001; telephone: 301–415– 3. Type of submission: Revision. The NRC is seeking comments that 2084; email: Infocollects.Resource@ 4. The form number, if applicable: address the following questions: nrc.gov. There is no form number for the online 1. Is the proposed collection of submission form. B. Submitting Comments information necessary for the NRC to 5. How often the collection is required properly perform its functions? Does the Please include Docket ID NRC–2020– or requested: On Occasion. information have practical utility? 0124 in the subject line of your 6. Who will be required or asked to comment submission, in order to ensure respond: All holders of, and certain 2. Is the estimate of the burden of the that the NRC is able to make your applicants for, nuclear power plant information collection accurate? comment submission available to the construction permits and operating 3. Is there a way to enhance the public in this docket. licenses under the provisions of 10 CFR quality, utility, and clarity of the The NRC cautions you not to include part 50, ‘‘Domestic Licensing of information to be collected? identifying or contact information in Production and Utilization Facilities’’ 4. How can the burden of the comment submissions that you do not who seek exemptions from the medical information collection on respondents want to be publicly disclosed in your evaluation frequency and fit-testing be minimized, including the use of comment submission. The NRC will frequency requirements specified in 10 automated collection techniques or post all comment submissions at https:// CFR 20.1703(c)(5)(iii) and 10 CFR other forms of information technology? www.regulations.gov/ as well as enter 20.1703(c)(6), as allowed by 10 CFR Dated: May 21, 2020. the comment submissions into ADAMS, 20.2301 ‘‘Applications for exemptions.’’ and the NRC does not routinely edit 7. The estimated number of annual For the Nuclear Regulatory Commission. comment submissions to remove responses: 60. David C. Cullison, identifying or contact information. 8. The estimated number of annual NRC Clearance Officer, Office of the Chief If you are requesting or aggregating respondents: 60. Information Officer. comments from other persons for 9. The estimated number of hours [FR Doc. 2020–11321 Filed 5–26–20; 8:45 am] submission to the NRC, then you should needed annually to comply with the BILLING CODE 7590–01–P

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NUCLEAR REGULATORY SUPPLEMENTARY INFORMATION: The text of II. Request/Action COMMISSION the exemption is attached. By letter dated July 12, 2019 (ADAMS Dated: May 21, 2020. Accession No. ML19193A005), Exelon [Docket No. 50–289; NRC–2020–0122] For the Nuclear Regulatory Commission. submitted a partial exemption request for NRC approval from the record Exelon Generation Company, LLC; James S. Kim, retention requirements of: (1) 10 CFR Three Mile Island Nuclear Station, Unit Project Manager, Projects Licensing Branch 1 part 50, Appendix B, Criterion XVII, I, Division of Operating Reactor Licensing, which requires certain records (e.g., Office of Nuclear Reactor Regulation. AGENCY: Nuclear Regulatory results of inspections, tests, and Commission. Attachment: Exemption materials analyses) be maintained, consistent with applicable regulatory ACTION: Exemption; issuance. NUCLEAR REGULATORY requirements; (2) 10 CFR 50.59(d)(3), COMMISSION SUMMARY: The U.S. Nuclear Regulatory which requires that records of changes Commission (NRC) is issuing a partial Docket No. 50–289 in the facility must be maintained until exemption in response to a July 12, termination of a license is issued Exelon Generation Company, LLC; 2019, request from Exelon Generation pursuant to 10 CFR part 50; and (3) 10 Three Mile Island Nuclear Station, Company, LLC (the licensee). The CFR 50.71(c), which requires certain Unit 1 issuance of the exemption grants the records to be retained for the period licensee a partial exemption from Exemption specified by the appropriate regulation, regulations that require the retention of license condition, or technical records for certain systems, structures, Exelon Generation Company, LLC specification (TS), or until termination and components associated with Three (Exelon or the licensee) is the holder of of the license, if not otherwise specified. Mile Island Nuclear Station, Unit 1, Renewed Facility Operating License No. The licensee requested the partial until the termination of its operating DPR–50 for Three Mile Island Nuclear exemptions because it wants to license. Station, Unit 1 (TMI–1). The license eliminate: (1) Records associated with provides, among other things, that the DATES: The exemption was issued on structures, systems, and components May 19, 2020. facility is subject to all rules, (SSCs) and activities that were regulations, and orders of the U.S. applicable to the nuclear unit, which are ADDRESSES: Please refer to Docket ID Nuclear Regulatory Commission (NRC no longer required by the 10 CFR part NRC–2020–0122 when contacting the or the Commission) now or hereafter in 50 licensing basis (i.e., removed from NRC about the availability of effect. The TMI–1 facility is located in the Updated Final Safety Analysis information regarding this document. Dauphin County, Pennsylvania. Report (UFSAR) and/or TSs by You may obtain publicly-available By letter dated June 20, 2017 appropriate change mechanisms; and (2) information related to this document records associated with the storage of using any of the following methods: (Agencywide Documents Access and • Management System (ADAMS) spent nuclear fuel in the SFP once all Federal Rulemaking Website: Go to fuel has been removed from the spent http://www.regulations.gov and search Accession No. ML17171A151), Exelon submitted a certification in accordance fuel pool and the TMI–1 license no for Docket ID NRC–2020–0122. Address longer allows storage of fuel in the SFP. with Section 50.82(a)(1)(i) of Title 10 of questions about NRC Docket IDs in The licensee cites record retention the Code of Federal Regulations (10 Regulations.gov to Jennifer Borges; partial exemptions granted to Oyster CFR), stating its determination to telephone: 301–287–9127; email: Creek Nuclear Generating Station permanently cease operations at TMl-1 [email protected]. For technical (ADAMS Accession No. ML18122A306); no later than September 30, 2019. By questions, contact the individual listed Millstone Power Station, Unit 1 FOR FURTHER INFORMATION in the letter dated September 26, 2019 (ADAMS Accession No. ML070110567); CONTACT section of this document. (ADAMS Accession No. ML19269E480), • Zion Nuclear Power Station, Units 1 and NRC’s Agencywide Documents Exelon submitted to the NRC a 2 (ADAMS Accession No. Access and Management System certification in accordance with 10 CFR ML111260277); Vermont Yankee (ADAMS): You may obtain publicly- 50.82(a)(1)(ii), stating that as of Nuclear Power Station (ADAMS available documents online in the September 26, 2019, all fuel had been Accession No. ML15344A243); San ADAMS Public Documents collection at permanently removed from the TMl-1 Onofre Nuclear Generating Station, https://www.nrc.gov/reading-rm/ reactor vessel. However, the licensee is Units 1, 2, and 3 (ADAMS Accession adams.html. To begin the search, select still authorized to possess and store No. ML15355A055); Kewaunee Power ‘‘Begin Web-based ADAMS Search.’’ For irradiated nuclear fuel. Irradiated fuel is Station (ADAMS Accession No. problems with ADAMS, please contact currently being stored onsite in a spent ML17069A394); and Fort Calhoun the NRC’s Public Document Room fuel pool (SFP). TMI–1 is currently Station (ADAMS Accession No. reference staff at 1–800–397–4209, 301– designing and constructing an ML17172A730), as examples of the NRC 415–4737, or by email to pdr.resource@ independent spent fuel storage granting similar requests. nrc.gov. The ADAMS accession number installation (ISFSI) facility, which is Records associated with residual for each document referenced (if it is expected to be completed in early 2021 radiological activity and with available in ADAMS) is provided the and that will allow for dry cask storage. programmatic controls necessary to first time that it is mentioned in this The irradiated fuel will be stored in the support decommissioning, such as document. ISFSI until it is shipped offsite. With the security and quality assurance, are not FOR FURTHER INFORMATION CONTACT: reactor emptied of fuel, the reactor, affected by the partial exemption Justin C. Poole, Office of Nuclear reactor coolant system, and secondary request because they will be retained as Reactor Regulation; U.S. Nuclear system will no longer be in operation decommissioning records, as required Regulatory Commission, Washington, and will have no function related to the by 10 CFR part 50, until the termination DC 20555–0001; telephone: 301–415– safe storage and management of of the TMI–1 license. In addition, the 2048, email: [email protected]. irradiated fuel. licensee did not request an exemption

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associated with any other recordkeeping needed for safe storage of irradiated B. The Exemption Presents No Undue requirements for the storage of spent fuel. Analogous to other plant records, Risk to Public Health and Safety fuel at its ISFSI under 10 CFR part 50 once the SFP is permanently emptied of As SSCs are prepared for SAFSTOR or the general license requirements of 10 fuel, there will be no need for retaining and eventual decommissioning and CFR part 72. No exemption was SFP-related records. dismantlement, they will be removed requested from the decommissioning Exelon’s general justification for from NRC licensing basis documents records retention requirements of 10 eliminating records associated with through appropriate change CFR 50.75 or any other requirements of TMI–1 SSCs that have been or will be mechanisms, such as through the 10 10 CFR part 50 applicable to removed from service under the NRC CFR 50.59 process or through a license decommissioning and dismantlement. license, dismantled, or demolished, is amendment request approved by the III. Discussion that these SSCs will not in the future NRC. These change processes involve serve any TMI–1 functions regulated by either a determination by the licensee or Pursuant to 10 CFR 50.12, the the NRC. Exelon’s decommissioning Commission may, upon application by an approval from the NRC that the plans for TMI–1 are described in the affected SSCs no longer serve any safety any interested person or upon its own Post Shutdown Decommissioning initiative, grant exemptions from the purpose regulated by the NRC. Activities Report dated April 5, 2019 Therefore, the removal of the SSCs requirements of 10 CFR part 50 when (ADAMS Accession No. ML19095A041). the exemptions are authorized by law, would not present an undue risk to The licensee’s decommissioning process public health and safety. In turn, will not present an undue risk to public involves evaluating SSCs with respect to health or safety, and are consistent with elimination of records associated with the current facility safety analysis; the common defense and security. these removed SSCs would not cause progressively removing them from the However, the Commission will not any additional impact to public health licensing basis where necessary through consider granting an exemption unless and safety. appropriate change mechanisms (e.g., 10 special circumstances are present. The granting of the partial exemption CFR 50.59 or by NRC-approved TS Special circumstances are described in request from the recordkeeping changes, as applicable); revising the 10 CFR 50.12(a)(2). requirements of 10 CFR 50.71(c); 10 CFR Many of the TMI–1 reactor facility defueled safety analysis report and/or part 50, Appendix B, Criterion XVII; and SSCs are planned to be abandoned in UFSAR as necessary; and then 10 CFR 50.59(d)(3) for the records place pending dismantlement. proceeding with an orderly described is administrative in nature Abandoned SSCs will no longer be dismantlement. and will have no impact on any operable or maintained. Following Exelon intends to retain the records remaining decommissioning activities permanent removal of fuel from the required by its license as the state of the or on radiological effluents. The SFP, those SSCs required to support safe facility transitions through granting of the partial exemption storage of spent fuel in the SFP will also decommissioning. However, equipment request will only advance the schedule be abandoned. In its July 12, 2019, abandonment will obviate the regulatory for disposition of the specified records. partial exemption request, the licensee and business needs for maintenance of Because these records contain stated that the basis for eliminating most records. As the SSCs are removed information about SSCs associated with records associated with reactor facility from the licensing basis, Exelon asserts reactor operation and contain no SSCs and activities is that these SSCs that the need for its records is, on a information needed to maintain the have been (or will be) removed from practical basis, eliminated. Therefore, facility in a safe condition when the service per regulatory change processes, Exelon is requesting partial exemptions facility is permanently defueled and the dismantled or demolished, and no from the associated records retention SSCs are dismantled, the elimination of longer have any function regulated by requirements for SSCs and historical these records on an advanced timetable the NRC. activities that are no longer relevant. will have no reasonable possibility of The licensee recognizes that some Exelon is not requesting to be exempted presenting any undue risk to the public records related to the nuclear unit will from any recordkeeping requirements health and safety. continue to be under NRC regulation for storage of spent fuel at an ISFSI C. The Exemption is Consistent With the primarily due to residual radioactivity. under 10 CFR part 50 or the general Common Defense and Security The radiological and other necessary license requirements of 10 CFR part 72. The elimination of the recordkeeping programmatic controls (such as security, A. The Exemption Is Authorized by Law quality assurance, etc.) for the facility requirements does not involve and the implementation of controls for As stated above, 10 CFR 50.12 allows information or activities that could the defueled condition and the the NRC to grant exemptions from 10 potentially impact the common defense decommissioning activities are and will CFR part 50 requirements if it makes and security of the United States. Upon continue to be appropriately addressed certain findings. As described here and dismantlement of the affected SSCs, the through the license and current plant in the sections below, the NRC staff has records have no functional purpose documents such as the UFSAR and TSs. determined that special circumstances relative to maintaining the safe Except for future changes made through exist to grant the partial exemption. In operation of the SSCs, maintaining the applicable change process defined addition, granting the licensee’s conditions that would affect the ongoing in the regulations (e.g., 10 CFR 50.48(f), proposed partial exemption will not health and safety of workers or the 10 CFR 50.59, 10 CFR 50.90, 10 CFR result in a violation of the Atomic public, or informing decisions related to 50.54(a), 10 CFR 50.54(p), 10 CFR Energy Act of 1954, as amended; other nuclear security. 50.54(q), etc.), these programmatic laws; or the Commission’s regulations. Rather, the partial exemption elements and their associated records Therefore, the granting of the partial requested is administrative in nature are unaffected by the requested partial exemption request from the and would only advance the current exemption. recordkeeping requirements of 10 CFR schedule for disposition of the specified Records necessary for SFP SSCs and 50.71(c); 10 CFR part 50, Appendix B, records. Therefore, the partial activities will continue to be retained Criterion XVII; and 10 CFR 50.59(d)(3) exemption request from the through the period that the SFP is is authorized by law. recordkeeping requirements of 10 CFR

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50.71(c); 10 CFR part 50, Appendix B, Appropriate removal of an SSC from the captured, indexed, and stored in an Criterion XVII; and 10 CFR 50.59(d)(3) licensing basis requires either a environmentally suitable and retrievable for the types of records described is determination by the licensee or an condition. Given the volume of records consistent with the common defense approval from the NRC that the SSC no associated with the SSCs, compliance and security. longer has the potential to cause an with the records retention rule results in accident, event, or other problem that a considerable cost to the licensee. D. Special Circumstances would adversely impact public health Retention of the volume of records Paragraph 50.12(a)(2) of 10 CFR states, and safety. associated with the SSCs during the in part: The records subject to removal under operational phase is appropriate to serve The Commission will not consider granting this partial exemption request are the underlying purpose of determining an exemption unless special circumstances associated with SSCs that had been compliance and noncompliance, taking are present. Special circumstances are important to safety during power action on possible noncompliance, and present whenever—... operation or operation of the SFP, but examining facts following an incident, (ii) Application of the regulation in the are no longer capable of causing an as discussed. particular circumstances would not serve the event, incident, or condition that would However, the cost effect of retaining underlying purpose of the rule or is not adversely impact public health and operational phase records beyond the necessary to achieve the underlying purpose safety, as evidenced by their appropriate operations phase until the termination of the rule; or removal from the licensing basis of the license was not fully considered (iii) Compliance would result in undue documents. If the SSCs no longer have or understood when the records hardship or other costs that are significantly in excess of those contemplated when the the potential to cause these scenarios, retention rule was put in place. For regulation was adopted... then it is reasonable to conclude that the example, existing records storage records associated with these SSCs facilities are eliminated as Criterion XVII of Appendix B to 10 would not reasonably be necessary to decommissioning progresses. Retaining CFR part 50 states, in part: ‘‘Sufficient assist the NRC in determining records associated with SSCs and records shall be maintained to furnish compliance and noncompliance, taking activities that no longer serve a safety or evidence of activities affecting quality.’’ action on possible noncompliance, or regulatory purpose would, therefore, Paragraph 50.59(d)(3) of 10 CFR examining facts following an incident. result in an unnecessary financial and states, in part: ‘‘The records of changes Therefore, their retention would not administrative burden. As such, in the facility must be maintained until serve the underlying purpose of the compliance with the rule would result the termination of an operating license rule. in an undue cost in excess of that issued under this part . . .’’ In addition, once removed from the contemplated when the rule was Paragraph 50.71(c) of 10 CFR, states, licensing basis documents (e.g., UFSAR adopted. Therefore, special in part: or TSs), SSCs are no longer governed by circumstances are present that the NRC Records that are required by the the NRC’s regulations, and therefore, are may consider, pursuant to 10 CFR regulations in this part or part 52 of this not subject to compliance with the 50.12(a)(2)(iii), to grant the partial chapter, by license condition, or by technical safety and health aspects of the nuclear exemption request. specifications must be retained for the period environment. As such, retention of specified by the appropriate regulation, records associated with SSCs that are or E. Environmental Considerations license condition, or technical specification. will no longer be part of the facility Pursuant to 10 CFR 51.22(b) and If a retention period is not otherwise serves no safety or regulatory purpose, (c)(25), the granting of an exemption specified, these records must be retained nor does it serve the underlying purpose from the requirements of any regulation until the Commission terminates the facility in Chapter I of 10 CFR part 50 meets the license.... of the rule of maintaining compliance with the safety and health aspects of the eligibility criteria for categorical In the statement of considerations for nuclear environment in order to exclusion provided that: (1) There is no the final rulemaking, ‘‘Retention Periods accomplish the NRC’s mission. significant hazards consideration; (2) for Records’’ (53 FR 19240; May 27, Therefore, special circumstances are there is no significant change in the 1988), in response to public comments present that the NRC may consider, types or significant increase in the received during the rulemaking process, pursuant to 10 CFR 50.12(a)(2)(ii), to amounts of any effluents that may be the NRC stated that records must be grant the partial exemption request. released offsite; (3) there is no retained ‘‘for NRC to ensure compliance Records that continue to serve the significant increase in individual or with the safety and health aspects of the underlying purpose of the rule, that is, cumulative public or occupational nuclear environment and for the NRC to to maintain compliance and to protect radiation exposure; (4) there is no accomplish its mission to protect the public health and safety in support of significant construction impact; (5) public health and safety.’’ In the the NRC’s mission, will continue to be there is no significant increase in the statement of considerations, the retained pursuant to other regulations in potential for or consequences from Commission also explained that 10 CFR part 50 and 10 CFR part 72. radiological accidents; and (6) the requiring licensees to maintain adequate Retained records that are not subject to requirements from which an exemption records assists the NRC ‘‘in judging the proposed partial exemption include is sought are among those identified in compliance and noncompliance, to act those associated with programmatic 10 CFR 51.22(c)(25)(vi). on possible noncompliance, and to controls, such as those pertaining to The partial exemption request is examine facts as necessary following residual radioactivity, security, and administrative in nature. The partial any incident.’’ quality assurance, as well as records exemption request has no effect on SSCs These regulations apply to licensees associated with the ISFSI and spent fuel and no effect on the capability of any in decommissioning. During the assemblies. plant SSC to perform its design decommissioning process, safety-related The retention of records required by function. The partial exemption request SSCs are retired or disabled and 10 CFR 50.71(c); 10 CFR part 50, would not increase the likelihood of the subsequently removed from NRC Appendix B, Criterion XVII; and 10 CFR malfunction of any plant SSC. licensing basis documents by 50.59(d)(3) provides assurance that The probability of occurrence of appropriate change mechanisms. records associated with SSCs will be previously evaluated accidents is not

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increased since most previously The partial exempted regulations are required to achieve the underlying analyzed accidents will no longer be not associated with construction, so purpose of the records retention rule. able to occur, and the probability and there is no significant construction Accordingly, the Commission has consequences of the remaining fuel impact. The partial exempted determined that pursuant to 10 CFR handling accident are unaffected by the regulations do not concern the source 50.12, the partial exemption is partial exemption request. Therefore, term (i.e., potential amount of radiation authorized by law, will not present an the partial exemption request does not involved for an accident) or accident undue risk to the public health and involve a significant increase in the mitigation; therefore, there is no safety, and is consistent with the probability or consequences of an significant increase in the potential for, common defense and security. Also, accident previously evaluated. or consequences from, radiological special circumstances are present. The partial exemption request does accidents. Allowing the licensee partial Therefore, the Commission hereby not involve a physical alteration of the exemption from the record retention grants Exelon a partial exemption from plant. No new or different types of requirements for which the exemption the recordkeeping requirements of 10 equipment will be installed, and there is sought involves recordkeeping CFR 50.71(c); 10 CFR part 50, Appendix are no physical modifications to existing requirements, as well as reporting B, Criterion XVII; and 10 CFR equipment associated with the partial requirements of an administrative, 50.59(d)(3) for TMI–1 only to the extent exemption request. Similarly, the partial managerial, or organizational nature. necessary to allow the licensee to exemption request will not physically Therefore, pursuant to 10 CFR advance the schedule to remove records change any SSCs involved in the 51.22(b) and 10 CFR 51.22(c)(25), no associated with SSCs that have been or mitigation of any accidents. Thus, no environmental impact statement or will have been removed from NRC new initiators or precursors of a new or environmental assessment need be licensing basis prior to the destruction different kind of accident are created. prepared in connection with the of the related documents by appropriate Furthermore, the partial exemption approval of this exemption request. change mechanisms (e.g., 10 CFR 50.59 request does not create the possibility of or by NRC-approved license amendment a new accident as a result of new failure IV. Conclusions request, as applicable). modes associated with any equipment The NRC staff has determined that the This exemption is effective upon or personnel failures. No changes are granting of the partial exemption issuance. being made to parameters within which request from the recordkeeping Dated: May 19, 2020. the plant is normally operated or in the requirements of 10 CFR 50.71(c); 10 CFR setpoints that initiate protective or For the Nuclear Regulatory Commission. part 50, Appendix B, Criterion XVII; and mitigative actions, and no new failure Craig G. Erlanger, 10 CFR 50.59(d)(3) will not present an modes are being introduced. Therefore, Director, Division of Operating Reactor undue risk to the public health and the partial exemption request does not Licensing, Office of Nuclear Reactor safety. The destruction of the identified create the possibility of a new or Regulation. records, following permanent removal different kind of accident from any [FR Doc. 2020–11347 Filed 5–26–20; 8:45 am] of the related SSCs and/or SFP from accident previously evaluated. BILLING CODE 7590–01–P The partial exemption request does service, will not impact remaining not alter the design basis or any safety decommissioning activities; plant limits for the plant. The partial operations, configuration, and/or NUCLEAR REGULATORY exemption request does not impact radiological effluents; operational and/ COMMISSION or installed SSCs that are quality-related station operation or any plant SSC that [NRC–2020–0049] is relied upon for accident mitigation. or important to safety; or nuclear security. The NRC staff has determined Therefore, the partial exemption request Information Collection: ‘‘Standard that the destruction of the identified does not involve a significant reduction Specification for the Granting of Patent records at that time is administrative in in a margin of safety. Licenses’’ For these reasons, the NRC staff has nature and does not involve information determined that approval of the partial or activities that could potentially AGENCY: Nuclear Regulatory exemption request involves no impact the common defense and Commission. significant hazards consideration security of the United States. ACTION: Renewal of existing information because granting the licensee’s partial The purpose for the recordkeeping collection; request for comment. exemption request from the regulations is to assist the NRC in recordkeeping requirements of 10 CFR carrying out its mission to protect the SUMMARY: The U.S. Nuclear Regulatory 50.71(c); 10 CFR part 50, Appendix B, public health and safety by ensuring Commission (NRC) invites public Criterion XVII; and 10 CFR 50.59(d)(3) that the licensing and design basis of the comment on the renewal of Office of at the decommissioning TMI–1 does facility are understood, documented, Management and Budget (OMB) not: (1) Involve a significant increase in preserved, and retrievable in such a way approval for an existing collection of the probability or consequences of an that will aid the NRC in determining information. The information collection accident previously evaluated, (2) create compliance and noncompliance, taking is entitled, ‘‘Standard Specification for the possibility of a new or different kind action on possible noncompliance, and the Granting of Patent Licenses.’ ’’ of accident from any accident examining facts following an incident. DATES: Submit comments by July 27, previously evaluated, or (3) involve a Since the TMI–1 SSCs that were safety- 2020. Comments received after this date significant reduction in a margin of related or important to safety have been will be considered if it is practical to do safety (10 CFR 50.92(c)). Likewise, there or will have been removed from the so, but the Commission is able to ensure is no significant change in the types or licensing basis and permanently consideration only for comments significant increase in the amounts of removed from service prior to received on or before this date. any effluents that may be released destruction of the related records, the ADDRESSES: You may submit comments offsite and no significant increase in NRC staff has determined that the by any of the following methods: individual or cumulative public or records identified in the partial • Federal Rulemaking website: Go to occupational radiation exposure. exemption request will no longer be https://www.regulations.gov and search

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for Docket ID NRC–2020–0049. For B. Submitting Comments Regulations (10 CFR), the NRC may technical questions, contact the Please include Docket ID NRC–2020– grant nonexclusive licenses or limited individual listed in the FOR FURTHER 0049 in the subject line of your exclusive licenses to its patented INFORMATION CONTACT section of this comment submission, in order to ensure inventions to responsible applicants. document. that the NRC is able to make your Applicants for licenses to NRC • Mail comments to: David Cullison, comment submission available to the inventions are required to provide Office of the Chief Information Officer, public in this docket. information which may provide the Mail Stop: T–6 A10M, U.S. Nuclear The NRC cautions you not to include basis for granting the requested license. Regulatory Commission, Washington, identifying or contact information in In addition, all license holders must DC 20555–0001. comment submissions that you do not submit periodic reports on efforts to For additional direction on obtaining want to be publicly disclosed in your bring the invention to a point of information and submitting comments, comment submission. The NRC will practical application and the extent to see ‘‘Obtaining Information and post all comment submissions at https:// which they are making the benefits of Submitting Comments’’ in the www.regulations.gov as well as enter the the invention reasonably accessible to SUPPLEMENTARY INFORMATION section of comment submissions into ADAMS, the public. Exclusive license holders this document. and the NRC does not routinely edit must submit additional information if they seek to extend their licenses, issue FOR FURTHER INFORMATION CONTACT: comment submissions to remove identifying or contact information. sublicenses, or transfer the licenses. In David Cullison, Office of the Chief addition, if requested, exclusive license Information Officer, U.S. Nuclear If you are requesting or aggregating comments from other persons for holders must promptly supply to the Regulatory Commission, Washington, United States Government copies of all DC 20555–0001; telephone: 301–415– submission to the NRC, then you should inform those persons not to include pleadings and other papers filed in any 2084; email: Infocollects.Resource@ patent infringement lawsuit, as well as nrc.gov. identifying or contact information that they do not want to be publicly evidence from proceedings relating to SUPPLEMENTARY INFORMATION: disclosed in their comment submission. the licensed patent. I. Obtaining Information and Your request should state that the NRC III. Specific Requests for Comments does not routinely edit comment Submitting Comments The NRC is seeking comments that submissions to remove such information address the following questions: A. Obtaining Information before making the comment 1. Is the proposed collection of submissions available to the public or Please refer to Docket ID NRC–2020– information necessary for the NRC to entering the comment into ADAMS. 0049 when contacting the NRC about properly perform its functions? Does the the availability of information for this II. Background information have practical utility? action. You may obtain publicly- In accordance with the Paperwork 2. Is the estimate of the burden of the available information related to this Reduction Act of 1995 (44 U.S.C. information collection accurate? action by any of the following methods: 3. Is there a way to enhance the • Chapter 35), the NRC is requesting Federal Rulemaking website: Go to public comment on its intention to quality, utility, and clarity of the https://www.regulations.gov and search request the OMB’s approval for the information to be collected? for Docket ID NRC–2020–0049. A copy information collection summarized 4. How can the burden of the of the collection of information and below. information collection on respondents related instructions may be obtained 1. The title of the information be minimized, including the use of without charge by accessing Docket ID collection: 10 CFR part 81, ‘‘Standard automated collection techniques or NRC–2020–0049 on this website. Specification for the Granting of Patent other forms of information technology? • NRC’s Agencywide Documents Licenses.’’ Dated: May 21, 2020. Access and Management System 2. OMB approval number: 3150–0121. For the Nuclear Regulatory Commission. (ADAMS): You may obtain publicly- 3. Type of submission: Extension. David C. Cullison, available documents online in the 4. The form number, if applicable: NRC Clearance Officer, Office of the Chief ADAMS Public Documents collection at N/A. Information Officer. https://www.nrc.gov/reading-rm/ 5. How often the collection is required [FR Doc. 2020–11317 Filed 5–26–20; 8:45 am] adams.html. To begin the search, select or requested: Applications for licenses BILLING CODE 7590–01–P ‘‘Begin Web-based ADAMS Search.’’ For are submitted once. Other reports are problems with ADAMS, please contact submitted annually, or as other events the NRC’s Public Document Room (PDR) require. NUCLEAR REGULATORY reference staff at 1–800–397–4209, 301– 6. Who will be required or asked to COMMISSION 415–4737, or by email to pdr.resource@ respond: Applicants for and holders of nrc.gov. The supporting statement is NRC licenses to NRC inventions. [Docket No. 50–548; NRC–2020–0090] available in ADAMS under Accession 7. The estimated number of annual No. ML20104A035. Entergy Operations Inc.; River Bend responses: 1. Station, Unit 1 • NRC’s Clearance Officer: A copy of 8. The estimated number of annual the collection of information and related respondents: 1. AGENCY: Nuclear Regulatory instructions may be obtained without 9. The estimated number of hours Commission. charge by contacting NRC’s Clearance needed annually to comply with the ACTION: License amendment application; Officer, David Cullison, Office of the information collection requirement or withdrawal by applicant. Chief Information Officer, U.S. Nuclear request: 10; however, no applications Regulatory Commission, Washington, are anticipated during the next three SUMMARY: The U.S. Nuclear Regulatory DC 20555–0001; telephone: 301–415– years. Commission (NRC) has granted the 2084; email: Infocollects.Resource@ 10. Abstract: As specified in Part 81 request of Entergy Operations, Inc. nrc.gov. of Title 10 of the Code of Federal (Entergy, the licensee) to withdraw its

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application dated March 23, 2020, for a Accession No. ML19070A062), which DATES: Comments on this proposal for proposed amendment to River Bend approved a revision to the River Bend emergency review should be received by Station, Unit 1 (River Bend), Renewed Emergency Plan to revise the emergency May 22, 2020. If granted, the emergency Facility Operating License No. NPF–47. action level scheme to one based on the approval is only valid for 180 days. We The proposed amendment would have NEI document NEI 99–01, Revision 6, are requesting OMB to take action extended the implementation date for ‘‘Development of Emergency Action within two calendar days from the close Amendment No. 197 to upgrade the Levels for Non-Passive Reactors,’’ from of this Federal Register Notice on the River Bend Emergency Action Level May 13, 2020, to September 30, 2020, request for emergency review. scheme based on Nuclear Energy due to the ongoing COVID–19 pandemic ADDRESSES: Interested persons are Institute (NEI) 99–01, Revision 6, and the resulting impact on the station. invited to submit written comments on ‘‘Development of Emergency Action This proposed amendment request the proposed information collection to Levels for Non-Passive Reactors,’’ from was noticed in the Federal Register on the Office of Information and Regulatory May 13, 2020, to September 30, 2020, April 2, 2020 (85 FR 18590). Entergy Affairs, Office of Management and due to the ongoing COVID–19 pandemic requested to withdraw the request by Budget, 725 17th Street NW, and the resulting impact on the station. letter dated April 24, 2020 (ADAMS Washington, DC 20503, Attention: Desk DATES: May 27, 2020. Accession No. ML20115E516). Officer for the Peace Corps or sent via ADDRESSES: Please refer to Docket ID Dated: May 21, 2020. email to [email protected] NRC–2020–0090 when contacting the For the Nuclear Regulatory Commission. or faxed to (202) 395–3086. NRC about the availability of Thomas J. Wengert, FOR FURTHER INFORMATION CONTACT: information regarding this document. Senior Project Manager, Plant Licensing Virginia Burke, FOIA Officer, Peace Branch IV, Division of Operating Reactor You may obtain publicly-available Corps, 1275 First Street NE, information related to this document Licensing, Office of Nuclear Reactor Regulation. Washington, DC 20526, (202) 692–1887, using any of the following methods: or email at [email protected]. • Federal Rulemaking website: Go to [FR Doc. 2020–11313 Filed 5–26–20; 8:45 am] https://www.regulations.gov and search BILLING CODE 7590–01–P SUPPLEMENTARY INFORMATION: This for Docket ID NRC–2020–0090. Address process is conducted in accordance with questions about NRC docket IDs in 5 CFR 1320.13. The Peace Corps plans Regulations.gov to Jennifer Borges; PEACE CORPS to follow this emergency request with a telephone: 301–287–9127; email: submission for a 3 year approval [email protected]. For technical Submission for OMB Emergency through OMB’s normal PRA clearance questions, contact the individual listed Review: Request for Comments process. We are seeking an emergency clearance to allow us to collect in the FOR FURTHER INFORMATION AGENCY: Peace Corps. CONTACT section of this document. information from Returned Peace Corps ACTION: Notice of information • NRC’s Agencywide Documents Volunteers. collection—OMB emergency review and Access and Management System Title: Expedited Reinstatement request for comments requested. (ADAMS): You may obtain publicly- Application. available documents online in the SUMMARY: The Peace Corps has OMB control number: Pending. ADAMS Public Documents collection at submitted the following information Type of request: New Emergency https://www.nrc.gov/reading-rm/ collection request, utilizing emergency Review. adams.html. To begin the search, select review procedures, to the Office of Affected public: Volunteers, Trainees, ‘‘Begin Web-based ADAMS Search.’’ For Management and Budget (OMB) for and Response Volunteers, who were problems with ADAMS, please contact review and clearance in accordance recently evacuated from their countries the NRC’s Public Document Room (PDR) with the Paperwork Reduction Act of of service in response to the coronavirus reference staff at 1–800–397–4209, 301– 1995 and OMB regulations. OMB disease 2019 (COVID 19) pandemic. 415–4737, or by email to pdr.resource@ approval has been requested by the Respondents’ obligation to reply: nrc.gov. The ADAMS accession number Office of Volunteer Recruitment and Voluntary. for each document referenced (if that Selection. OMB is particularly Burden to the public: document is available in ADAMS) is interested in comments that: Evaluate provided the first time that a document whether the proposed collection of a. Number of respondents: 7, 000. is referenced. information is necessary for the proper b. Frequency of response: 1. FOR FURTHER INFORMATION CONTACT: performance of the functions of the c. Completion time: 15 Minutes. Thomas J. Wengert, Office of Nuclear agency, including whether the d. Annual burden hours: 1,750. Reactor Regulation, U.S. Nuclear information will have practical utility; e. Estimated cost to respondents: $ Regulatory Commission, Washington, Evaluate the accuracy of the agency’s 0.00. DC 20555–0001; telephone: 301–415– estimate of the burden of the proposed This notice issued in Washington, DC on 4037, email: [email protected]. collection of information, including the May 22, 2020. SUPPLEMENTARY INFORMATION: The NRC validity of the methodology and Virginia Burke, assumptions used; Enhance the quality, has granted the request of Entergy to FOIA/Privacy Act Officer/Management. withdraw its March 23, 2020, utility, and clarity of the information to [FR Doc. 2020–11415 Filed 5–22–20; 4:15 pm] application (ADAMS Accession No. be collected; and Minimize the burden ML20083N719) for a proposed of the collection of information on those BILLING CODE 6051–01–P amendment to River Bend, Renewed who are to respond, including through the use of appropriate automated, Facility Operating License No. NPF–47, PEACE CORPS located in West Feliciana Parish, electronic, mechanical, or other Louisiana. technological collection techniques or Submission for OMB Emergency The proposed amendment would other forms of information technology, Review: Request for Comments have extended the implementation date e.g., permitting electronic submissions for Amendment No. 197 (ADAMS of responses. AGENCY: Peace Corps.

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ACTION: Notice of information Title: Peace Corps Response • Email: paperwork.comments@ collection—OMB emergency review and Reinstatement Application 2020. pbgc.gov. Refer to Generic Clearance for request for comments requested. OMB control number: Pending. the Collection of Qualitative Feedback Type of request: New Emergency on Agency Service Delivery information SUMMARY: The Peace Corps has Review. collection in the subject line. submitted the following information Affected public: Volunteers, Trainees, • Mail or Hand Delivery: Regulatory collection request, utilizing emergency and Response Volunteers, who were Affairs Division, Office of the General review procedures, to the Office of recently evacuated from their countries Counsel, Pension Benefit Guaranty Management and Budget (OMB) for of service in response to the coronavirus Corporation, 1200 K Street NW, review and clearance in accordance disease 2019 (COVID 19) pandemic. Washington, DC 20005–4026. with the Paperwork Reduction Act of Respondents’ obligation to reply: All submissions received must 1995 and OMB regulations. OMB Voluntary. include the agency’s name (Pension approval has been requested by the Burden to the public: Benefit Guaranty Corporation, or PBGC) Office of Peace Corps Response. OMB is a. Number of respondents: 1, 000. and refer to Generic Clearance for the particularly interested in comments b. Frequency of response: 1. Collection of Qualitative Feedback on that: Evaluate whether the proposed c. Completion time: 15 Minutes. Agency Service Delivery information collection of information is necessary d. Annual burden hours: 250. collection. All comments received will for the proper performance of the e. Estimated cost to respondents: $ be posted without change to PBGC’s functions of the agency, including 0.00. website, http://www.pbgc.gov, including whether the information will have This notice issued in Washington, DC on any personal information provided. practical utility; Evaluate the accuracy May 22, 2020. Copies of the collection of of the agency’s estimate of the burden of Virginia Burke, information may be obtained by writing the proposed collection of information, FOIA/Privacy Act Officer/Management. to Disclosure Division, Office of the including the validity of the [FR Doc. 2020–11414 Filed 5–22–20; 4:15 pm] General Counsel, Pension Benefit methodology and assumptions used; Guaranty Corporation, 1200 K Street BILLING CODE 6051–01–P Enhance the quality, utility, and clarity NW, Washington, DC 20005–4026, or of the information to be collected; and calling 202–326–4040 during normal Minimize the burden of the collection of business hours. TTY users may call the PENSION BENEFIT GUARANTY information on those who are to Federal Relay Service toll-free at 800– CORPORATION respond, including through the use of 877–8339 and ask to be connected to appropriate automated, electronic, Proposed Submission of Information 202–326–4040. mechanical, or other technological Collection for OMB Review; Comment FOR FURTHER INFORMATION CONTACT: collection techniques or other forms of Request; Generic Clearance for the Melissa Rifkin (rifkin.melissa@ information technology, e.g., permitting Collection of Qualitative Feedback on pbgc.gov), Attorney, Regulatory Affairs electronic submissions of responses. Agency Service Delivery Division, Office of the General Counsel, DATES: Comments on this proposal for Pension Benefit Guaranty Corporation, emergency review should be received by AGENCY: Pension Benefit Guaranty 1200 K Street NW, Washington DC May 26, 2020. If granted, the emergency Corporation. 20005–4026; 202–229–6563. (TTY users approval is only valid for 180 days. We ACTION: Notice of intent to request may call the Federal Relay Service toll- are requesting OMB to take action extension of OMB approval without free at 800–877–8339 and ask to be within two calendar days from the close change. connected to 202–229–6563.) of this Federal Register Notice on the SUPPLEMENTARY INFORMATION: The SUMMARY: The Pension Benefit Guaranty request for emergency review. information collection activity will Corporation (PBGC) intends to request ADDRESSES: Interested persons are gather qualitative customer and that the Office of Management and invited to submit written comments on stakeholder feedback in an efficient, Budget (OMB) extend approval, under the proposed information collection to timely manner, in accordance with the Paperwork Reduction Act, of the the Office of Information and Regulatory PBGC’s commitment to improving collection of information on qualitative Affairs, Office of Management and service delivery. Qualitative feedback feedback on PBGC’s service delivery Budget, 725 17th Street NW, means information that provides useful (OMB Control Number 1212–0066; Washington, DC 20503, Attention: Desk insights on perceptions and opinions, expires October 31, 2020). This notice Officer for the Peace Corps or sent via but the information requests are not _ informs the public of PBGC’s intent and email to oira [email protected] statistical surveys that yield quantitative solicits comments on the proposed or faxed to (202) 395–3086. results generalizable to the population information collection. This collection FOR FURTHER INFORMATION CONTACT: of interest. This feedback provides of information was developed as part of Virginia Burke, FOIA Officer, Peace insights into customer or stakeholder a Federal Government-wide effort to Corps, 1275 First Street NE, perceptions, experiences and streamline the process for seeking Washington, DC 20526, (202) 692–1887, expectations, provides early warnings of feedback from the public on service or email at [email protected]. issues with service, and focuses delivery. SUPPLEMENTARY INFORMATION: This attention on areas where changes in process is conducted in accordance with DATES: Comments must be received on PBGC’s communication with the public, 5 CFR 1320.13. The Peace Corps plans or before July 27, 2020 to be assured of in training of staff, or in operations to follow this emergency request with a consideration. might improve the delivery of products submission for a 3 year approval ADDRESSES: Comments may be or services. These collections will allow through OMB’s normal PRA clearance submitted by any of the following for ongoing, collaborative and process. We are seeking an emergency methods: actionable communications between clearance to allow us to collect • Federal eRulemaking Portal: http:// PBGC and its customers and information from Returned Peace Corps www.regulations.gov. Follow the stakeholders. These collections also Volunteers. instructions for submitting comments. allow feedback to contribute directly to

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the improvement of program calculations that justify the proposed POSTAL REGULATORY COMMISSION management. sample size, the expected response rate, The solicitation of feedback targets methods for assessing potential non- [Docket Nos. MC2020–135 and CP2020–143] areas such as: Timeliness, response bias, the protocols for data New Postal Product appropriateness, accuracy of collection, and any testing procedures information, courtesy, efficiency of that were or will be undertaken prior to AGENCY: Postal Regulatory Commission. service delivery, and resolution of fielding the study. ACTION: Notice. issues with service delivery. Responses As a general matter, information will be assessed to plan and inform collections will not result in any new SUMMARY: The Commission is noticing a efforts to improve or maintain the system of records containing privacy recent Postal Service filing for the quality of service offered to the public. information and will not ask questions Commission’s consideration concerning If this information were not collected, of a sensitive nature, such as sexual a negotiated service agreement. This vital feedback from customers and behavior and attitudes, religious beliefs, notice informs the public of the filing, stakeholders on PBGC’s services would and other matters that are commonly invites public comment, and takes other be unavailable. considered private. administrative steps. PBGC only submits a collection for Annually, over the next three years, DATES: Comments are due: May 29, approval under this generic clearance if PBGC estimates that it will conduct 2020. it meets the following conditions: three activities involving about 1,630 • The collections are voluntary; respondents, each of whom will provide ADDRESSES: Submit comments • The collections are low-burden for one response. The number of electronically via the Commission’s respondents (based on considerations of respondents will vary by activity: 40 for Filing Online system at http:// total burden hours, total number of usability testing, 90 for focus groups www.prc.gov. Those who cannot submit respondents, or burden-hours per (nine groups of ten respondents), and comments electronically should contact respondent) and are low-cost for both 1,500 for customer satisfaction surveys. the person identified in the FOR FURTHER the respondents and the Federal PBGC estimates the annual burden of INFORMATION CONTACT section by Government; this collection of information as 635 telephone for advice on filing • The collections are non- hours: 2 hours per response for usability alternatives. controversial and do not raise issues of testing (total 80 hours); 2 hours per FOR FURTHER INFORMATION CONTACT: concern to other Federal agencies; response for focus groups (total 180 • Any collection is targeted to the David A. Trissell, General Counsel, at hours); and 15 minutes per response for 202–789–6820. solicitation of opinions from customer satisfaction surveys (total 375 SUPPLEMENTARY INFORMATION: respondents who have experience with hours). No cost burden to the public is the program or may have experience anticipated. Table of Contents with the program in the near future; An agency may not conduct or • Personally identifiable information I. Introduction sponsor, and a person is not required to II. Docketed Proceeding(s) (PII) is collected only to the extent respond to, a collection of information necessary and is not retained; I. Introduction • unless it displays a currently valid OMB Information gathered will be used control number. only internally for general service The Commission gives notice that the PBGC is soliciting public comments Postal Service filed request(s) for the improvement and program management to— purposes and is not intended for release Commission to consider matters related • Evaluate whether the collection of to negotiated service agreement(s). The outside of the agency; information is necessary for the proper • Information gathered will not be request(s) may propose the addition or performance of the functions of the removal of a negotiated service used for the purpose of substantially agency, including whether the informing influential policy decisions; agreement from the market dominant or information will have practical utility; the competitive product list, or the and • Evaluate the accuracy of the • Information gathered will yield modification of an existing product agency’s estimate of the burden of the qualitative information; the collections currently appearing on the market collection of information, including the will not be designed or expected to dominant or the competitive product validity of the methodology and yield statistically reliable results or used list. assumptions used; as though the results are generalizable to Section II identifies the docket • Enhance the quality, utility, and the population of interest. number(s) associated with each Postal clarity of the information to be As noted, feedback collected under Service request, the title of each Postal collected; and this generic clearance does not produce Service request, the request’s acceptance • Minimize the burden of the results generalizable to the population date, and the authority cited by the collection of information on those who of interest. This type of generic Postal Service for each request. For each are to respond, including the use of clearance for qualitative information request, the Commission appoints an appropriate automated, electronic, will not be used for quantitative officer of the Commission to represent mechanical, or other technological information collections that are the interests of the general public in the collection techniques or other forms of designed to yield reliably actionable proceeding, pursuant to 39 U.S.C. 505 information technology, e.g., permitting results, such as monitoring trends over (Public Representative). Section II also electronic submission of responses. time or documenting program establishes comment deadline(s) performance. Collections with such Issued in Washington DC, by pertaining to each request. objectives require more rigorous designs Hilary Duke, The public portions of the Postal that address: The target population to Assistant General Counsel for Regulatory Service’s request(s) can be accessed via which generalizations will be made, the Affairs, Pension Benefit Guaranty the Commission’s website (http:// sampling frame, the sample design Corporation. www.prc.gov). Non-public portions of (including stratification and clustering), [FR Doc. 2020–11346 Filed 5–26–20; 8:45 am] the Postal Service’s request(s), if any, the precision requirements or power BILLING CODE 7709–02–P can be accessed through compliance

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with the requirements of 39 CFR and Exchange Commission proposes to amend a representation 3011.301.1 (‘‘Commission’’) the proposed rule relating to the procedure for the The Commission invites comments on change as described in Items I and II redemption of Units of each Trust for whether the Postal Service’s request(s) below, which Items have been prepared gold or silver bullion, respectively, as in the captioned docket(s) are consistent by the self-regulatory organization. The contained in the Prior Releases. Units of with the policies of title 39. For Commission is publishing this notice to the Sprott Physical Gold Trust and the request(s) that the Postal Service states solicit comments on the proposed rule Sprott Physical Silver Trust commenced concern market dominant product(s), change from interested persons. trading on the Exchange on February 25, applicable statutory and regulatory 2010 and October 27, 2010, respectively. I. Self-Regulatory Organization’s requirements include 39 U.S.C. 3622, 39 The manager of each Trust is Sprott U.S.C. 3642, 39 CFR part 3030, and 39 Statement of the Terms of Substance of the Proposed Rule Change Asset Management LP (‘‘Manager’’).5 CFR part 3040, subpart B. For request(s) The Trust custodian for a Trust’s The Exchange proposes to amend that the Postal Service states concern physical gold and silver bullion, representations relating to the competitive product(s), applicable respectively, is the Royal Canadian Mint redemption procedures applicable to the statutory and regulatory requirements (‘‘Custodian’’). RBC Investor Services Sprott Physical Gold Trust and the include 39 U.S.C. 3632, 39 U.S.C. 3633, Trust (‘‘RBC’’) (formerly RBC Dexia Sprott Physical Silver Trust (each a 39 U.S.C. 3642, 39 CFR part 3035, and Investor Services Trust) is the trustee ‘‘Trust’’), as contained in the respective 39 CFR part 3040, subpart B. Comment and valuation agent of each Trust and rule change filed with and approved by deadline(s) for each request appear in the custodian of each Trust’s assets the Securities and Exchange section II. other than physical gold and silver Commission (‘‘Commission’’) relating to bullion. II. Docketed Proceeding(s) listing and trading of ‘‘Units’’ of each 1. Docket No(s).: MC2020–135 and Trust on the Exchange. Units of the Change to Procedures for Redemption of CP2020–143; Filing Title: USPS Request Trusts are currently listed and traded on Units for Gold or Silver to Add Priority Mail Contract 616 to the Exchange under NYSE Arca Rule Competitive Product List and Notice of 8.201–E. The proposed rule change is The Sprott Gold Notice stated that Filing Materials Under Seal; Filing available on the Exchange’s website at ‘‘[a] redemption notice to redeem Units Acceptance Date: May 20, 2020; Filing www.nyse.com, at the principal office of for physical gold bullion must be Authority: 39 U.S.C. 3642, 39 CFR the Exchange, and at the Commission’s received by the Trust’s transfer agent no 3040.130 et seq., and 39 CFR 3035.105; Public Reference Room. later than 4:00 p.m., Toronto time, on Public Representative: Kenneth R. the 15th day of the calendar month in Moeller; Comments Due: May 29, 2020. II. Self-Regulatory Organization’s which the redemption notice will be This Notice will be published in the Statement of the Purpose of, and processed or, if such day is not a day on Federal Register. Statutory Basis for, the Proposed Rule which banks located in New York, New Change York, are open for the transaction of Erica A. Barker, In its filing with the Commission, the banking business (a ‘‘Business Day’’), Secretary. self-regulatory organization included then on the immediately following day [FR Doc. 2020–11304 Filed 5–26–20; 8:45 am] statements concerning the purpose of, that is a Business Day. Any redemption BILLING CODE 7710–FW–P and basis for, the proposed rule change notice received after such time will be and discussed any comments it received processed in the next month.’’ The on the proposed rule change. The text Sprott Gold Notice stated further that SECURITIES AND EXCHANGE of those statements may be examined at ‘‘[p]hysical gold bullion received by a COMMISSION the places specified in Item IV below. Unitholder as a result of a redemption of Units will be delivered by armored [Release No. 34–88912; File No. SR– The Exchange has prepared summaries, NYSEArca–2020–42] set forth in sections A, B, and C below, transportation service carrier pursuant of the most significant parts of such to delivery instructions provided by the Self-Regulatory Organizations; NYSE statements. Unitholder’’ and that ‘‘[t]he armored Arca, Inc.; Notice of Filing and transportation service carrier will Immediate Effectiveness of Proposed A. Self-Regulatory Organization’s receive gold bullion in connection with Rule Change To Amend Statement of the Purpose of, and the a redemption of Units approximately 10 Representations Relating to the Statutory Basis for, the Proposed Rule Business Days after the end of the Redemption Procedures Applicable to Change month in which the redemption notice the Sprott Physical Gold Trust and the 1. Purpose is processed.’’ Sprott Physical Silver Trust The Commission has approved Trust) (‘‘Sprott Gold Order’’); 63043 (October 5, May 20, 2020. proposed rule changes relating to listing 2010), 75 FR 62615 (October 12, 2010) (SR– Pursuant to Section 19(b)(1) 1 of the and trading on the Exchange of Units of NYSEArca–2010–84) (Notice of Filing and Order Securities Exchange Act of 1934 the Sprott Physical Gold Trust and the Approving Proposed Rule Change to List and Trade 2 3 Sprott Physical Silver Trust under Shares of Sprott Physical Silver Trust) (‘‘Sprott (‘‘Act’’) and Rule 19b–4 thereunder, Silver Order’’ and, together with the Sprott Gold notice is hereby given that, on May 6, NYSE Arca Rule 8.201–E (‘‘Commodity- Notice and Sprott Gold Order, the ‘‘Prior Releases’’). 4 2020, NYSE Arca, Inc. (‘‘NYSE Arca’’ or Based Trust Shares’’). The Exchange 5 The Sprott Physical Gold Trust and the Sprott ‘‘Exchange’’) filed with the Securities Physical Silver Trust filed with the Commission 4 See Securities Exchange Act Release Nos. 61236 registration statements on Form F–10 under the (December 23, 2009), 75 FR 170 (January 4, 2019) Securities Act of 1933, as amended, relating to the 1 See Docket No. RM2018–3, Order Adopting (SR–NYSEArca–2009–113) (Notice of Filing of Trusts on June 20, 2018 (as amended and Final Rules Relating to Non-Public Information, Proposed Rule Change for the Listing and Trading supplemented) (File No. 333–225771)) and June 20, June 27, 2018, Attachment A at 19–22 (Order No. of Sprott Physical Gold Trust) (‘‘Sprott Gold 2018 (as amended and supplemented) (File No. 4679). Notice’’); 61496 (February 10, 2010), 75 FR 6758 333–225772), respectively (together, the 1 15 U.S.C. 78s(b)(1). (February 10, 2010) (SR–NYSEArca–2009–113) ‘‘Registration Statements’’). The description of the 2 15 U.S.C. 78a. (Order Granting Approval of a Proposed Rule operation of the Trusts herein is based, in part, on 3 17 CFR 240.19b–4. Change to List and Trade Sprott Physical Gold the Registration Statements.

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Similarly, the Sprott Silver Order high frequency of shipments in a short 2. Statutory Basis stated that ‘‘[a] redemption notice to period of time places a significant strain The basis under the Exchange Act for redeem Units for physical silver bullion on the operational and security this proposed rule change is the must be received by the Trust’s transfer resources necessary to prepare such requirement under Section 6(b)(5) 10 agent no later than 4:00 p.m. Toronto shipments, resulting in additional that an exchange have rules that are time, on the 15th day of the calendar expenses and risk to the Trust and the designed to prevent fraudulent and month in which the redemption notice Custodian. The Manager and the manipulative acts and practices, to will be processed or, if such day is not Custodian expect that the Amendments promote just and equitable principles of a day on which banks located in New will decrease operational expenses and trade, to remove impediments to, and York, New York, are open for the risk caused by the 10 Business Day term perfect the mechanism of a free and transaction of banking business (a currently provided by the applicable open market and, in general, to protect ‘‘Business Day’’), then on the Trust Agreement. The Manager investors and the public interest. immediately following day that is a represents that by mitigating such The proposed rule change is designed Business Day. Any redemption notice to perfect the mechanism of a free and received after such time will be expenses and risk, it is anticipated that the Amendments will allow the open market and, in general, to protect processed in the next month. The Sprott investors and the public interest. The Custodian to continue to provide each Silver Order stated further that Exchange believes that the Amendments ‘‘[p]hysical silver bullion received by a Trust with low custody pricing. The may provide potential benefits to Unitholder as a result of a redemption Amendments thereby may result in investors by decreasing operational of Units will be delivered by armored narrowing of the spread between the expenses and risk caused by the 10 transportation service carrier pursuant trading price of Units, which price Business Day time frame currently to delivery instructions provided by the reflects the performance of the trading provided by the applicable Trust Unitholder’’ and that ‘‘[t]he armored prices of gold and silver, respectively, Agreement. The Manager represents that transportation service carrier will less the expenses of a Trust’s operations, by mitigating such expenses and risk, it receive silver bullion in connection and the trading prices of gold and silver is anticipated that the Amendments will with a redemption of Units in accordance with each Trust’s allow the Custodian to continue to approximately 10 Business Days after objectives. Pursuant to the terms of the provide each Trust with low custody the end of the month in which the Trust Agreements and the applicable pricing and may result in the narrowing redemption notice is processed.’’ laws of the Province of Ontario, the of the spread between the trading price The Exchange proposes to delete the Amendments are being effected on the of Units, which price reflects the preceding statements relating to receipt ground that they provide added performance of the trading prices of of bullion by the armored transportation protection or benefit to ‘‘Unitholders.’’ 8 gold or silver, respectively less the service carrier in connection with a expenses of a Trust’s operations, and the redemption of Units approximately 10 The Manager represents that the trading prices of gold or silver in Business Days after the end of the proposed change described above is accordance with a Trust’s objectives. month in which the redemption notice consistent with each Trust’s investment The Manager represents that the is processed in accordance with a objective, and will further assist the proposed changes described above are pending amendment to the ‘‘Trust Manager to achieve such investment consistent with each Trust’s investment Agreement’’ for each Trust (the objective. Except for the changes noted objective, and will further assist the ‘‘Amendments’’).6 above, all other representations made in Manager to achieve such investment The Manager represents that the the Prior Releases remained objectives. The Manager also represents actual timing of receipt of bullion by the unchanged.9 that all Unitholders will be subject to armored transportation service carrier the Amendments; that the Manager has varies based on the number of but do not specify any minimum deadline for determined that the Amendments will redemption requests received in a given physical delivery of the commodity to the provide added protection or benefit to month, the redemption amount per redeeming investor following a redemption request. Unitholders; and that the Amendments See, e.g., Securities Exchange Act Release Nos. are being proposed to mitigate the request and the amount of gold and 71378 (January 23, 2014), 79 FR 4786 (January 29, silver bullion redeemed, as applicable. 2014) (SR–NYSEArca–2013–137) (Order Approving practical constraints associated with the The Manager represents that, in the a Proposed Rule Change, as Modified by high volume of redemption requests. event of large numbers or volumes of Amendment No. 1 Thereto, to List and Trade Shares Except for the changes noted above, of the Merk Gold Trust Pursuant to NYSE Arca all other representations made in the redemption requests, the Custodian and Equities Rule 8.201); 82593 (January 26, 2018), 83 the armored transportation service FR 4718 (February 1, 2018) (SR–NYSEArca–2017– Prior Releases remained unchanged. carrier experience severe constraints in 140) (Order Approving a Proposed Rule Change to B. Self-Regulatory Organization’s performing their required actions within List and Trade Shares of the Perth Mint Physical Gold ETF Trust Pursuant to NYSE Arca Rule 8.201– Statement on Burden on Competition the existing time period (i.e., E). 7 The Exchange does not believe that approximately 10 Business Days). A 8 Each Trust will file an amendment to its the proposed rule change will impose respective Trust Agreement or an amended and 6 The Exchange notes that the proposed deletions restated Trust Agreement, as appropriate, in Canada any burden on competition that is not are substantively identical to those included in a on SEDAR (System for Electronic Document necessary or appropriate in furtherance proposed rule change relating to redemption Analysis and Retrieval), the electronic filing system of the purposes of the Exchange Act. procedures of the Sprott Physical Gold and Silver for the disclosure documents of issuers across The Exchange believes the proposed Trust. See Securities Exchange Act Release No. Canada. In addition, a brief description of the 84282 (September 25, 2018), 83 FR 49442 (October amendment will be included in a Trust’s quarterly rule change, by decreasing each Trust’s 1, 2018) (SR–NYSEArca–2018–69) (Notice of Filing disclosures. Such filings or disclosures would be operational expenses and risk relating to and Immediate Effectiveness of Proposed Rule furnished to the Commission under cover of Form redemptions, will enhance competition Change to Amend a Representation Relating to the 6–K in accordance with Rules 13a–1 and/or 13a– among issues of Commodity-Based Redemption Procedures Applicable to the Sprott 3 under the Exchange Act. Pursuant to the terms of Physical Gold and Silver Trust). the applicable Trust Agreement, a Unitholder vote Trust Shares relating to physical gold 7 The Commission has previously approved the is not required to effect the amendment. and silver. listing and trading of other gold-based commodity 9 See note 4, supra. All terms referenced but not trusts that include a physical redemption feature defined herein are defined in the Prior Releases. 10 15 U.S.C. 78f(b)(5).

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C. Self-Regulatory Organization’s expenses and risk caused by the 10 Commission process and review your Statement on Comments on the Business Day timeframe (as described comments more efficiently, please use Proposed Rule Change Received From above) currently provided by the Trust only one method. The Commission will Members, Participants, or Others Agreements. Furthermore, the Exchange post all comments on the Commission’s No written comments were solicited represents that, in the absence of large internet website (http://www.sec.gov/ numbers or volumes of redemption rules/sro.shtml). Copies of the or received with respect to the proposed requests or other factors causing delay, submission, all subsequent rule change. the armored transportation service amendments, all written statements III. Date of Effectiveness of the carrier will typically receive physical with respect to the proposed rule Proposed Rule Change and Timing for gold and silver bullion in accordance change that are filed with the Commission Action with the 10 Business Day time frame Commission, and all written The Exchange has filed the proposed contained in the Prior Releases, and the communications relating to the rule change pursuant to Section Commission notes that Units of the proposed rule change between the 19(b)(3)(A)(iii) of the Act 11 and Rule Trusts have commenced trading on the Commission and any person, other than 19b–4(f)(6) thereunder.12 Because the Exchange. The Commission believes those that may be withheld from the that waiver of the 30-day operative public in accordance with the proposed rule change does not: (i) delay is consistent with the protection provisions of 5 U.S.C. 552, will be Significantly affect the protection of of investors and the public interest for available for website viewing and investors or the public interest; (ii) these reasons. Accordingly, the printing in the Commission’s Public impose any significant burden on Commission hereby waives the 30-day Reference Room, 100 F Street NE, competition; and (iii) become operative operative delay and designates the Washington, DC 20549 on official prior to 30 days from the date on which proposed rule change operative upon business days between the hours of it was filed, or such shorter time as the filing.18 10:00 a.m. and 3:00 p.m. Copies of the Commission may designate, if At any time within 60 days of the filing also will be available for consistent with the protection of filing of such proposed rule change, the inspection and copying at the principal investors and the public interest, the Commission summarily may office of the Exchange. All comments proposed rule change has become temporarily suspend such rule change if received will be posted without change. effective pursuant to Section 19(b)(3)(A) it appears to the Commission that such Persons submitting comments are of the Act and Rule 19b–4(f)(6)(iii) action is necessary or appropriate in the 13 cautioned that we do not redact or edit thereunder. public interest, for the protection of personal identifying information from A proposed rule change filed under investors, or otherwise in furtherance of 14 comment submissions. You should Rule 19b–4(f)(6) normally does not the purposes of the Act. If the submit only information that you wish become operative prior to 30 days after Commission takes such action, the to make available publicly. All the date of the filing. However, pursuant Commission will institute proceedings submissions should refer to File 15 to Rule 19b–4(f)(6)(iii), the to determine whether the proposed rule Number SR–NYSEArca–2020–42 and Commission may designate a shorter change should be approved or should be submitted on or before June time if such action is consistent with the disapproved. 17, 2020. protection of investors and the public interest. The Exchange has asked the IV. Solicitation of Comments For the Commission, by the Division of Trading and Markets, pursuant to delegated Commission to waive the 30-day Interested persons are invited to authority.19 operative delay so that the proposal may submit written data, views, and J. Matthew DeLesDernier, become operative immediately upon arguments concerning the foregoing, Assistant Secretary. filing. The Exchange states that waiver including whether the proposed rule of the 30-day operative delay is change is consistent with the Act. [FR Doc. 2020–11286 Filed 5–26–20; 8:45 am] consistent with the protection of Comments may be submitted by any of BILLING CODE 8011–01–P investors and the public interest the following methods: because the Commission has previously SECURITIES AND EXCHANGE approved the listing and trading of gold- Electronic Comments COMMISSION based commodity trusts that include a • Use the Commission’s internet physical redemption feature but do not comment form (http://www.sec.gov/ [Release No. 34–88911; File Nos. SR–DTC– specify any minimum deadline for rules/sro.shtml); or 2020–008; SR–FICC–2020–004; SR–NSCC– physical delivery of the commodity to • Send an email to rule-comments@ 2020–008] the redeeming investor following a sec.gov. Please include File Number SR– Self-Regulatory Organizations; The redemption request,16 NYSEArca–2020–42 on the subject line. and the proposed Depository Trust Company; Fixed changes are substantively identical to Paper Comments Income Clearing Corporation; National those in another proposed rule change 17 • Send paper comments in triplicate Securities Clearing Corporation; Order relating to redemption procedures. In Approving a Proposed Rule Change To addition, the Exchange believes the to: Secretary, Securities and Exchange Commission, 100 F Street NE, Modify the Clearing Agency Model proposed rule change may benefit Risk Management Framework investors by decreasing operational Washington, DC 20549–1090. All submissions should refer to File May 20, 2020. 11 15 U.S.C. 78s(b)(3)(A)(iii). Number SR–NYSEArca–2020–42. This On April 10, 2020, The Depository 12 17 CFR 240.19b–4(f)(6). file number should be included on the Trust Company (‘‘DTC’’), Fixed Income 13 17 CFR 240.19b–4(f)(6)(iii). subject line if email is used. To help the Clearing Corporation (‘‘FICC’’), and 14 17 CFR 240.19b–4(f)(6). National Securities Clearing Corporation 15 17 CFR 240.19b–4(f)(6)(iii). 18 For purposes only of waiving the 30-day (‘‘NSCC,’’ each a ‘‘Clearing Agency,’’ 16 See note 7, supra. operative delay, the Commission has also 17 See note 6, supra (relating to redemption considered the proposed rule’s impact on and collectively, the ‘‘Clearing procedures of the Sprott Physical Gold and Silver efficiency, competition, and capital formation. See Trust). 15 U.S.C. 78c(f). 19 17 CFR 200.30–3(a)(12).

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Agencies’’), filed with the Securities and included and tracked within a model who develops and operates a model and Exchange Commission (‘‘Commission’’) inventory (‘‘Model Inventory’’) not only personnel who are currently proposed rule changes SR–DTC–2020– maintained by DTCC’s Model Validation Model Owners). The Clearing Agencies 008; SR–FICC–2020–004; SR–NSCC– and Control Unit (‘‘MVC’’), which is represent that this change is to make 2020–008, respectively, pursuant to part of the Group Chief Risk Office. The clear that MVC has an independent Section 19(b)(1) of the Securities parent company of the Clearing reporting line to the Group Chief Risk Exchange Act of 1934 (‘‘Act’’) 1 and Rule Agencies is The Depository Trust & Officer, without potential conflict of 19b–4 thereunder.2 The proposed rule Clearing Corporation (‘‘DTCC’’). DTCC reporting to any person that could be a changes were published for comment in operates on a shared services model Model Owner.10 Under the proposal, the the Federal Register on April 21, 2020,3 with respect to the Clearing Agencies. Framework would further state that the and the Commission received no Most corporate functions are established head of MVC is a member of the comment letters regarding the changes and managed on an enterprise-wide Management Risk Committee proposed in the proposed rule changes. basis pursuant to intercompany (‘‘MRC’’).11 For the reasons discussed below, the agreements under which it is generally 2. Processes for Determining Model Commission is approving the proposed DTCC that provides a relevant service to Materiality and Complexity rule changes.4 a Clearing Agency. Section 3.2 of the Framework outlines I. Description of the Proposed Rule The proposed rule changes would that MVC assigns a materiality rating Change amend the Framework to (i) modify certain roles and governance and complexity rating to each model A. Background arrangements set forth within the after it is added to the Model Each Clearing Agency has established Framework, (ii) incorporate a Inventory.12 Currently, all model a Model Risk Management Framework description of and references to the materiality rating and complexity rating (‘‘Framework’’) 5 to help it identify, ‘‘Model Risk Tolerance Statement,’’ and assignments are reviewed by at least measure, monitor, and manage the risks (iii) make other technical and clarifying annually by MVC, as well as by the associated with the design, changes to the text of the Framework, as Model Risk Governance Committee development, implementation, use, and described below. (‘‘MRGC’’).13 validation of quantitative models.6 The proposal would revise the role of B. Modification of Roles and the MRGC, including by removing its Pursuant to the Framework, a model Governance Arrangements developed for use by any of the Clearing oversight authority in the Model Agencies and meeting the above 1. Role and Reporting Lines of the Validation process and leaving MVC as definition for the term ‘‘model’’ is Model Owner, MVC, and MRC the sole entity responsible for reviewing the model materiality and complexity Section 3.1 of the Framework 1 ratings. Moreover, under the proposal, 15 U.S.C. 78s(b)(1). describes how models are developed for 2 17 CFR 240.19b–4. the MRGC would serve as a forum for use by any of the Clearing Agencies and 3 Securities Exchange Act Release No. 88640 review of model risk matters rather than tracked within the Model Inventory.7 In (April 15, 2020), 85 FR 22191 (April 21, 2020) a decision-making body charged with (‘‘DTC Notice of Filing’’); Securities Exchange Act particular, the Framework currently the oversight of such matters. The Release No. 88636 (April 15, 2020), 85 FR 22228 describes a ‘‘Model Owner’’ 8 as the proposal would also revise the MRGC’s (April 21, 2020) (‘‘FICC Notice of Filing’’); person responsible for the development Securities Exchange Act Release No. 88637 (April name by replacing ‘‘Committee’’ with or operation of a model being validated 15, 2020), 85 FR 22222 (April 21, 2020) (‘‘NSCC ‘‘Council’’ to reflect the MRGC’s role as Notice of Filing’’). by MVC. The proposal would define a an advisory body.14 4 Capitalized terms not defined herein are defined Model Owner as the person who is in the DTC Rules, GSD Rules, MBSD Rules, or designated by the applicable business 3. Processes for Model Approval and NSCC Rules, as applicable, available at http:// dtcc.com/legal/rules-and-procedures. area or support function to be Control 5 See Securities Exchange Act Release No. 81485 responsible for a particular model and Section 3.6 of the Framework (August 25, 2017), 82 FR 41433 (August 31, 2017) who is recorded as the Model Owner for currently provides that the Financial (File Nos. SR–DTC–2017–008; SR–FICC–2017–014; such model by MVC in the Model SR–NSCC–2017–008) (‘‘2017 Framework Order’’). Engineering Unit (‘‘FEU’’) within The proposed rule changes do not require any Inventory. Quantitative Risk Management (‘‘QRM’’) changes to (1) the Rules, By-Laws and Organization Currently, the Framework states that is responsible for developing, testing, Certificate of DTC (‘‘DTC Rules’’), (2) the Rulebook the Executive Director of MVC reports to and signing-off on new models and of the Government Securities Division of FICC the Group Chief Risk Officer rather than (‘‘GSD Rules’’), (3) the Clearing Rules of the enhancements to existing models before Mortgage-Backed Securities Division of FICC to any Model Owner. The proposal (‘‘MBSD Rules’’), or (4) the Rules & Procedures of would change the title of the head of 10 See DTC Notice of Filing, 82 FR at 22193; FICC NSCC (‘‘NSCC Rules’’), as the Framework is a MVC from an Executive Director to Notice of Filing, 82 FR at 22229; NSCC Notice of standalone document. Filing, 82 FR at 22224. 6 Managing Director at each Clearing See 2017 Framework Order, 82 FR at 41433. 11 The MRC is the Clearing Agencies’ ‘‘[M]odel’’ refers to a quantitative method, system, Agency to reflect that a more senior officer of the Clearing Agencies would management level committee responsible for, or approach that applies statistical, economic, among other things, model risk management financial, or mathematical theories, techniques, and 9 be responsible for supervising MVC. matters. See 2017 Framework Order, 82 FR at assumptions to process input data into quantitative The proposal would also clarify that the 41435. estimates. A ‘‘model’’ consists of three components: 12 An information input component, which delivers head of MVC reports to the Group Chief A model’s rating impacts both the prioritization assumptions and data to the model; a processing Risk Officer rather than to anyone that and approval authority for that model’s validation. component, which transforms inputs into estimates; could be a Model Owner (i.e., anyone See DTC Notice of Filing, 82 FR at 22193; FICC and a reporting component, which translates the Notice of Filing, 82 FR at 22230; NSCC Notice of estimates into useful business information. The Filing, 82 FR at 22224. 7 definition of ‘‘model’’ also covers quantitative See DTC Notice of Filing, 82 FR at 22192; FICC 13 See 2017 Framework Order, 82 FR at 41434. approaches whose inputs are partially or wholly Notice of Filing, 82 FR at 22228; NSCC Notice of 14 See DTC Notice of Filing, 82 FR at 22193; FICC qualitative or based on expert judgment, provided Filing, 82 FR at 22223. Notice of Filing, 82 FR at 22230; NSCC Notice of that the output is quantitative in nature. See DTC 8 See 2017 Framework Order, 82 FR at 41434. Filing, 82 FR at 22224. As proposed, the MRGC Notice of Filing, 82 FR at 22192; FICC Notice of 9 See DTC Notice of Filing, 82 FR at 22193; FICC could provide advice or recommendations Filing, 82 FR at 22228; NSCC Notice of Filing, 82 Notice of Filing, 82 FR at 22229; NSCC Notice of regarding model risk matters to the interested party FR at 22222. Filing, 82 FR at 22223. of a pertinent model.

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submitting any new model to MVC for of model performance monitoring and for risk reporting. The proposal would Model Validation and approval. The preparation of model performance remove the MRGC’s role in review and Clearing Agencies state that QRM is a monitoring reports. Similarly, the approval of changes to backtesting risk management function within the proposal would revise the Framework to methodology and instead vest that Group Chief Risk Office, and that a clarify that QRM, which encompasses responsibility with MVC to reflect the representative of QRM is the Model Model Owners, would be responsible change in oversight of Model Validation Owner for all margin models used by for model performance monitoring of from the MRGC to MVC. the Clearing Agencies.15 The section the Clearing Agencies’ margin models. further explains that all new models and The proposal would also revise the role C. Incorporation of the Model Risk all material changes to existing models of MVC with respect to model Tolerance Statement performance monitoring to providing undergo Model Validation by MVC and The Framework currently includes a must be approved prior to business use. oversight of model performance description of internal DTCC policies In addition, the section states that monitoring activities (as opposed to and procedures that support the models that have a materiality rating of conducting the monitoring) by setting Framework, including the (1) DTCC ‘Medium’ or ‘High’ must be approved by organizational standards and providing Model Risk Management Policy, (2) the MRC, after the MRGC has reviewed critical analysis for identifying model DTCC Model Validation Procedures, (3) the model and recommended it to the issues and/or limitations. In addition, MRC for approval. the proposal would remove the DTCC Model Risk Performance The proposal would transfer FEU’s statement that review of model Monitoring Procedures, (4) the DTCC responsibilities to the Model Owners to performance measure is subject to Backtesting Procedures, and (5) Market reflect the elimination of the FEU review by the MRGC. Risk Tolerance Statement (‘‘Related 16 Procedures’’). The Framework also notes within QRM. Also, the proposal 5. Backtesting Responsibilities would remove the requirement that that the Related Procedures may be Model Validations with a materiality Section 3.9 of the Framework updated or amended. rating of ‘Medium’ or ‘High’ be currently states that MVC is responsible The proposal would add the Model approved by the MRC, after the MRGC for each Clearing Agency’s Value-at-Risk Risk Tolerance Statement as one of has reviewed and recommended the (‘‘VaR’’) backtesting and Clearing Fund DTCC’s internal policies and procedures model to the MRC for approval. As a Requirement (‘‘CFR’’) backtesting. to support the Framework. The proposal result of these changes, MVC would Consistent with the changes described would explain that the Model Risk have the sole and exclusive authority to above, this section would be revised to Tolerance Statement sets forth, among approve a model. state that QRM would perform VaR and other things, risk tolerance levels The Clearing Agencies represent that CFR backtesting, as QRM is responsible covering model design and for performance monitoring functions MVC is best suited to address Model implementation, including with respect to margin models. Validation issues based on its consideration of a model’s intended quantitative and technical expertise and 6. Board of Directors and Senior purpose and/or its adequacy of knowledge.17 Accordingly, the proposal Management Reporting performance. would remove any text that indicates Section 4.1 of the Framework The proposal would also add an that MRC approval is required for any currently describes the MRGC as the explanation of the existing Market Risk Model Validation to be complete and/or primary forum for MVC’s regular for a model to remain in production. In Tolerance Statement, stating that it reporting of Model Validation activities addition, consistent with the proposed articulates, among other things, risk and material model risks identified changes to Section 3.2, the proposal tolerance levels for (i) margin backtests through regular model performance would make changes to reflect that the addressing backtest coverage and (ii) monitoring. The proposal would delete MRGC does not have any oversight role stress tests covering exposure to extreme this reference to the MRGC’s role, as it for model approval and control. market moves. would no longer have oversight of Further, the proposal would add 4. Model Performance Monitoring Model Validation and model language to the Framework stating that Responsibilities performance monitoring. In addition, it the Model Risk Tolerance Statement and would add the MRC as a recipient of Section 3.8 of the Framework the Market Risk Tolerance Statement periodic reporting. currently states that MVC is responsible (each a ‘‘Risk Tolerance Statement’’) for model performance monitoring, 7. Escalation record the overall risk reduction or including review of risk-based models Section 4.2 describes the processes mitigation objectives as they relate to used to calculate margin requirements applicable for further review of the key model risk and market risk activities. and relevant parameters/threshold metrics identified in Section 3.9 Under the proposal, the Framework indicators, sensitivity analysis, and (Backtesting). Currently, such metrics would also state that the Risk Tolerance model backtesting results, and are reviewed by the Market and Statements document the risk controls preparation of related reports. It also Liquidity Risk Management unit within and other measures used to manage states that review of these model the Group Chief Risk Office and MVC, such activities, including escalation performance measures is subject to and also reported to the MRC, on at least requirements in the event of risk metric review by the MRGC. a monthly basis. The section further breaches. Similarly, the proposal would Under the proposal, the Framework states that the MRGC reviews and also revise the Framework to provide would identify Model Owners as approves changes to backtesting that the Risk Tolerance Statements responsible for the design and execution methodology. would be reviewed, revised, retired, The proposal would eliminate the replaced, or approved by the BRC 15 See DTC Notice of Filing, 82 FR at 22194; FICC annually, based upon the existing Notice of Filing, 82 FR at 22230; NSCC Notice of provision that MVC would review the Filing, 82 FR at 22224. metrics and clarify that the key metrics circumstances and the reasonable best 16 See id. are reported to MRC by the group within judgement of management relating to 17 See id. the Group Chief Risk Office responsible model risk management matters.

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D. Other Technical Changes A. Consistency With Section technical and clarifying changes to the The proposal would also make a 17A(b)(3)(F) text that should help facilitate the number of technical changes to the Section 17A(b)(3)(F) of the Act effective execution of the Framework by Framework. First, Section 3.8 of the requires, in part, that the rules of a removing inconsistent use of Framework currently states that model clearing agency be designed to assure terminology and adopting more accurate performance monitoring is the process the safeguarding of securities and funds terminology. of (i) evaluating an active model’s which are in the custody or control of With the proposed rule changes ongoing performance based on the clearing agency or for which it is designed to enhance the Framework, the theoretical tests, (ii) monitoring the responsible.23 Clearing Agencies should be able to model’s parameters through the use of As described above, the Framework is more effectively manage its quantitative threshold indicators, and/or (iii) designed to identify, measure, monitor, models, and in turn, better evaluate and backtesting using actual historical data/ and manage the risks related to the address risk presented by Clearing realizations to test a VaR model’s design, development, implementation, Agencies’ members. By effectively predictive power. The Clearing use, and validation of quantitative evaluating and addressing risk Agencies state that the process of model models. The proposal is designed to presented by members, the Clearing performance monitoring does not enhance the Framework by improving Agencies should be able to better always take into account theoretical the governance arrangements relating to tests, threshold indicators, and/or address their exposure to members and the management of the Clearing assure the safeguarding of securities and historical data/realizations, but could Agencies’ quantitative models, take some or all of these into account as funds which are in Clearing Agencies’ expanding internal policies and custody or control. Therefore, for the appropriate under the circumstances.18 procedures to manage the models, and Accordingly, the proposal would reasons stated above, the Commission removing inconsistent and inaccurate believes that the proposed rule changes eliminate references to ‘‘theoretical terminology. are consistent with the requirements of tests,’’ ‘‘threshold indicators,’’ and First, the proposal is designed to Section 17A(b)(3)(F) of the Act.25 ‘‘historical data/realizations’’ to provide clarify and enhance the governance a more accurate description of the structures set forth in the Framework in B. Consistency With Rules 17Ad– Clearing Agencies’ model performance a number of ways. The proposal would 19 22(e)(2)(v) monitoring process. clarify and revise the roles of Model Second, to improve the readability Owner and QRM. The proposal would Rule 17Ad–22(e)(2)(v) under the Act and clarity of the Framework’s text, the revise MRGC’s role as advisory and no- requires that each covered clearing proposal would (1) remove the use of decision making one, and transfer agency establish, implement, maintain the modifier ‘‘Clearing Agency’’ with MRGC’s responsibilities to MVC. The and enforce written policies and respect to references to models and proposal would transfer the procedures reasonably designed to other parts of the Framework, (2) responsibility for approval of Model provide for governance arrangements replace ‘‘vendor’’ with ‘‘externally Validations from MRC to MVC. The that specify clear and direct lines of purchased’’ in describing models Clearing Agencies represent that MVC is responsibility.26 developed externally, (3) relocate composed of individuals with a high certain sentences, and (4) consistently As stated above, the proposal clarifies level of expertise relating to Model use ‘‘model’’ without capitalization. and specifies the governance Validation, and that MVC has an arrangements relating to the II. Discussion and Commission independent reporting line to the Group management of the Clearing Agencies Findings Chief Risk Officer, without any potential model risk management, including: (1) Section 19(b)(2)(C) of the Act 20 conflict of reporting to any person that The officer responsible for supervising 24 directs the Commission to approve a could be a Model Owner. Thus, taken MVC would be elevated from Executive proposed rule change of a self- together, under the proposal, the Director to Managing Director; (2) the regulatory organization if it finds that governance arrangements set forth in the officer responsible for supervising such proposed rule change is consistent Framework would specify these would report directly to the Group Chief particular lines of responsibility that with the requirements of the Act and Risk Officer rather than any person that ensure independence and competency rules and regulations thereunder is part of the development or operation of the group that manages model risk. applicable to such organization. After of a model; (3) the MRGC would Second, the proposal incorporates the carefully considering the proposed rule relinquish any decision making Model Risk Tolerance Statement in the change, the Commission finds that the authority with regard to model risk Framework as one of the Clearing proposed rule change is consistent with management issues; (4) MVC would the requirements of the Act and the Agencies’ internal policies and procedures to support the Framework. have the sole and exclusive authority to rules and regulations thereunder approve a model, and would oversee applicable to the Clearing Agencies. In The Model Risk Tolerance Statement model performance monitoring particular, the Commission finds that should provide additional specificity activities; and (5) QRM would perform the proposed rule change is consistent and clarity to the risk tolerance levels VaR and CFR backtesting. Such changes with Section 17A(b)(3)(F) 21 of the Act and help the Clearing Agencies to and Rules 17Ad–22(e)(2)(v), (e)(4)(vii), manage their models within more would clearly specify particular lines of and (e)(7)(vii) thereunder.22 clearly defined risk tolerance levels. responsibilities and a decision making Third, the proposal makes other process at each stage of the model risk 18 See DTC Notice of Filing, 82 FR at 22194; FICC management process. Because the Notice of Filing, 82 FR at 22231; NSCC Notice of 23 15 U.S.C. 78q–1(b)(3)(F). proposal would specify clear and direct Filing, 82 FR at 22225. 24 See DTC Notice of Filing, 82 FR at 22194; FICC lines of responsibility, the Commission 19 See id. Notice of Filing, 82 FR at 22230; NSCC Notice of believes that the proposed changes to 20 15 U.S.C. 78s(b)(2)(C). Filing, 82 FR at 22224. MVC is functionally separate 21 15 U.S.C. 78q–1(b)(3)(F). from all Clearing Agency areas that develop or 22 17 CFR 240.17Ad–22(e)(2)(v), (e)(4)(vii), and operate models. See 2017 Framework Order, 82 FR 25 15 U.S.C. 78q–1(b)(3)(F). (e)(7)(vii). at 41434. 26 17 CFR 240.17Ad–22(e)(2)(v).

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the Framework are consistent with Rule In particular, the proposal would state SECURITIES AND EXCHANGE 17Ad–22(e)(2)(v) 27 under the Act. that MVC would have the sole and COMMISSION C. Consistency With Rules 17Ad– exclusive authority to approve a model 22(e)(4)(vii) and (e)(7)(vii) and that it has an independent reporting [Release No. 34–88917; File No. SR–FINRA– line to the Group Chief Risk Officer. The 2020–015] Rule 17Ad–22(e)(4)(vii) under the Act Clearing Agencies represent that this requires that each covered clearing change is to make clear that MVC would Self-Regulatory Organizations; agency establish, implement, maintain not have potential conflicts of interest Financial Industry Regulatory and enforce written policies and by reporting to any person that could Authority, Inc.; Notice of Filing and procedures reasonably designed to have been a part of the development or Immediate Effectiveness of a Proposed effectively identify, measure, monitor, operation of a model. Also, the proposal and manage its credit exposures to Rule Change To Temporarily Amend would remove the MRGC’s oversight participants and those arising from its Certain Timing, Method of Service and payment, clearing, and settlement authority regarding Model Validation Other Procedural Requirements in processes, including by performing a and move that authority to MVC. The FINRA Rules During the Outbreak of model validation for its credit risk Clearing Agencies represent that MVC is the Coronavirus Disease (COVID–19) models not less than annually or more composed of individuals with a high May 20, 2020. frequently as may be contemplated by level of quantitative and technical the covered clearing agency’s risk expertise and knowledge. Pursuant to Section 19(b)(1) of the management framework.28 The changes set forth in the proposal Securities Exchange Act of 1934 Rule 17Ad–22(e)(7)(vii) under the Act would clearly define the governance (‘‘Act’’),1 and Rule 19b–4 thereunder,2 requires, in part, that each covered applicable to the Model Validation notice is hereby given that on May 8, clearing agency establish, implement, process and assign responsibilities to a 2020, Financial Industry Regulatory maintain and enforce written policies group that is qualified and free from Authority, Inc. (‘‘FINRA’’) filed with the and procedures reasonably designed to influence from the persons responsible Securities and Exchange Commission effectively identify, measure, monitor, for the development and operation of (‘‘Commission’’) the proposed rule and manage the liquidity risk that arises the Clearing Agencies’ models. The change as described in Items I and II in or is borne by the covered clearing Framework would continue to provide below, which Items have been prepared agency, including measuring, that Model Validations are performed by the self-regulatory organization. The monitoring, and managing its settlement annually. The Commission therefore Commission is publishing this notice to and funding flows on an ongoing basis, believes that the proposed changes to solicit comments on the proposed rule and its use of intraday liquidity by, at the Framework are consistent with Rule change from interested persons. a minimum, performing a model 17Ad–22(e)(4)(vii) 31 and (e)(7)(vii) 32 validation for its liquidity risk models I. Self-Regulatory Organization’s under the Act. not less than annually or more Statement of the Terms of Substance of frequently as may be contemplated by III. Conclusion the Proposed Rule Change the covered clearing agency’s risk management framework.29 On the basis of the foregoing, the FINRA proposes to temporarily Rule 17Ad–22(a)(9) under the Act Commission finds that the proposed amend FINRA Rules 1012, 1015, 6490, defines a model validation as an rule changes are consistent with the 9132, 9133, 9146, 9321, 9341, 9349, evaluation of the performance of each requirements of the Act and in 9351, 9522, 9524, 9525, 9559, and 9630 material risk management model used particular with the requirements of primarily to provide FINRA with by a covered clearing agency (and the Section 17A of the Act 33 and the rules temporary relief from certain timing, related parameters and assumptions and regulations promulgated method of service and other procedural associated with such models), including thereunder. requirements during the period in initial margin models, liquidity risk It is therefore ordered, pursuant to which FINRA’s operations are impacted models, and models used to generate Section 19(b)(2) of the Act 34 that by the outbreak of the coronavirus clearing or guaranty fund requirements, proposed rule changes SR–DTC–2020– disease (‘‘COVID–19’’).3 The text of the performed by a qualified person who is 008, SR–FICC–2020–004, SR–NSCC– proposed rule change is available on free from influence from the persons FINRA’s website at http:// responsible for the development or 2020–008, be, and hereby are, 35 www.finra.org, at the principal office of operation of the models or policies APPROVED. FINRA and at the Commission’s Public being validated.30 For the Commission, by the Division of The Framework provides a process for Trading and Markets, pursuant to delegated Reference Room. validation of the Clearing Agencies’ authority.36 1 15 U.S.C. 78s(b)(1). credit and liquidity risk models. The J. Matthew DeLesDernier, proposal would enhance the Framework 2 17 CFR 240.19b–4. Assistant Secretary. 3 by clarifying and amending the While the temporary rule change primarily [FR Doc. 2020–11285 Filed 5–26–20; 8:45 am] provides FINRA with relief, it also requires governance relating to the model risk BILLING CODE 8011–01–P applicants, respondents and other parties to file management of these models, including certain applications, documents or other Model Validation, expanding internal information by electronic mail, unless FINRA and policies and procedures to manage the 31 17 CFR 240.17Ad–22(e)(4)(vii). the relevant party agree to an alternative method of models, and removing inconsistent and 32 17 CFR 240.17Ad–22(e)(7)(vii). service. The rule change also temporarily provides 33 inaccurate terminology. 15 U.S.C. 78q–1. an extension of time for a Requesting Party to file 34 15 U.S.C. 78s(b)(2). an appeal in connection with Rule 6490(e) and 35 In approving the proposed rule changes, the removes the requirement to send FINRA a duplicate 27 17 CFR 240.17Ad–22(e)(2)(v). Commission considered the proposals’ impact on hard copy of certain documents and filings. FINRA 28 17 CFR 240.17Ad–22(e)(4)(vii). efficiency, competition, and capital formation. 15 has proposed these temporary rule changes in an 29 17 CFR 240.17Ad–22(e)(7)(vii). U.S.C. 78c(f). effort to provide consistent relief to both FINRA and 30 17 CFR 240.17Ad–22(a)(9). 36 17 CFR 200.30–3(a)(12). the impacted party under those rules.

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II. Self-Regulatory Organization’s respect to the health and safety of its electronic mail), FINRA will utilize Statement of the Purpose of, and employees. other permissible methods of service.7 Statutory Basis for, the Proposed Rule In addition, to the extent that an A. Self-Regulatory Organization’s Change applicant, respondent or other party Statement of the Purpose of, and In its filing with the Commission, the will suffer a hardship if FINRA elects Statutory Basis for, the Proposed Rule service by electronic mail, FINRA self-regulatory organization included Change statements concerning the purpose of, encourages the applicant, respondent or and basis for, the proposed rule change. 1. Purpose other party to contact FINRA to discuss The text of these statements may be The FINRA Rule 1000, 6400, 9100, reasonable accommodations. FINRA examined at the places specified in Item 9300, 9520, 9550 and 9600 Series noted that, in most cases, FINRA and IV below. The self-regulatory contain some filing, service, timing and the relevant party, or their counsel, will organization has prepared summaries, other procedural requirements that have already engaged in set forth in Sections A, B, and C below, present unique challenges in the current communications prior to the service of of the most significant aspects of such remote work environment. In response documents or other information under statements. to these challenges, FINRA proposed to the rules that are the subject of this The outbreak of COVID–19 has caused make temporary amendments to these temporary proposed rule change. substantial impacts on FINRA’s rule requirements to (i) allow, and in Accordingly, in most cases, FINRA will operations. Specifically, FINRA some instances require, FINRA to serve already have information regarding the employees, with limited exceptions, certain documents by electronic mail (or relevant party, or their counsel’s, have been directed to work remotely ‘‘email’’); (ii) require that applicants, preferred method of service. The FINRA Rule 1000 Series (Member and restrict certain in-person activities, respondents, and other parties file or Application and Associated Person consistent with the recommendations of serve documents by electronic mail in Registration) governs, among other public health officials.4 FINRA faces connection with specified proceedings things, the process for (i) applying for challenges meeting certain procedural and processes, unless the parties agree FINRA membership; (ii) FINRA requirements and performing certain to an alternative method of service; (iii) members to seek approval of a change functions in this remote work provide extensions of time to FINRA in ownership, control or business environment. In particular, working staff, respondents and other parties in operations, and (iii) an applicant to remotely makes it exceedingly difficult connection with certain adjudicatory request that FINRA’s appellate body, the to send and receive hard copy mail and and review processes; and (iv) allow for NAC, review a FINRA decision rendered conduct in-person meetings and oral arguments before the National under the 1000 Series. In connection hearings. Adjudicatory Council (‘‘NAC’’) to be with these processes, applicants and The rule changes will provide conducted by video conference. temporary relief from the timing, FINRA are required to file or serve method of service and other procedural a. Amendments To Allow or Require certain documents using the prescribed requirements described below during FINRA To Serve Documents by methods set forth in FINRA Rule the period in which FINRA’s operations Electronic Mail 1012(a), which do not include electronic 8 are impacted by COVID–19. The rule The current need for FINRA mail. In response to current conditions, changes would also require applicants, employees to work remotely and restrict FINRA proposes to temporarily amend respondents and other parties to serve certain in-person activities makes it Rule 1012(a)(4) to permit FINRA to or file certain documents or other difficult to send hard copy documents. serve documents under the Rule 1000 information by electronic mail, unless FINRA’s rules, with few exceptions, Series by electronic mail. The proposed the parties agree to an alternative however, do not currently provide for rule change also temporarily amends method, during this same time period. service by electronic mail.6 Continuing FINRA Rule 1015(f)(1), which requires As proposed, these changes would be in to require hard copy service despite the the NAC to serve a notice of a hearing place through June 15, 2020.5 logistical and other challenges before the NAC by facsimile or The requested relief will help presented by the outbreak of COVID–19 overnight courier, to allow service of the minimize the impact of the COVID–19 could lead to significant delays in notice by electronic mail.9 outbreak on FINRA’s operations, FINRA proceedings. Accordingly, The FINRA Rule 9000 Series, among allowing FINRA to continue critical FINRA proposed the rule amendments other things, sets forth the procedure for adjudicatory and review processes in a discussed below to allow, and in some FINRA proceedings for disciplining a reasonable and fair manner and meet its instances require, FINRA to serve member, associated person, or formerly critical investor protection goals, while documents by electronic mail. associated person. The Rule 9100 Series also following best practices with With respect to the temporary is of general applicability to all amendments that would permit FINRA proceedings set forth in the Rule 9000 4 FINRA has noted that state imposed restrictions to serve certain documents by electronic Series, unless a rule specifically on business operations and other activities in mail, it is FINRA’s intent to elect service response to the spread of COVID–19 continue and by electronic mail whenever possible. If 7 As indicated in the proposed rule text, and change rapidly. Some states have imposed consistent with service by mail, FINRA will significant limitations on business operations, and FINRA has knowledge that the address consider service by email complete upon sending essential businesses have scaled back operations by, utilized for service is not current or not of the relevant document or other information. for example, reducing store hours in some functional (i.e., FINRA receives a 8 FINRA Rule 1012(a) (General Provisions; Filing locations. These developments may impact the bounce back or other message indicating by Applicant or Service by FINRA) governs the ability of some individuals involved with FINRA filing and service requirements for the Rule 1000 proceedings to obtain and send necessary that there was a failure to deliver the Series. documents. 9 In an effort to acknowledge the same logistical 5 If FINRA requires temporary relief from these 6 FINRA currently permits service by electronic and other challenges facing applicants, FINRA also rule requirements beyond June 15, 2020, FINRA mail under some of its rules. For example, FINRA proposed to amend Rule 1015(a) to temporarily may submit a separate rule filing to extend the Rule 6490(d)(5) (Processing of Company-Related suspend the requirement that the applicant effectiveness of the temporary relief under these Actions; Procedures for Reviewing Submissions; simultaneously file by first-class mail a copy of the rules. The amended FINRA rules will revert back Notice Issuance) permits a notice under that request for review pursuant to Rule 1015(a) to the to their current state at the conclusion of the provision to be issued by facsimile or electronic district office where the applicant filed its temporary relief period and any extension thereof. mail, or pursuant to Rule 9134. application.

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provides otherwise. FINRA Rules method of service. The proposed rule accommodations, without 9132(b),10 Rule 9133(b),11 and Rule change temporarily amends Rules compromising critical investor 9146(l) 12 provide that the documents 9522(a)(4), 9524(a)(3)(A) and (B), protection measures or fair processes. and other information governed by 9524(b)(3), and Rule 9525(e) to allow for For example, FINRA is not seeking relief those rules be served pursuant to FINRA electronic mail as a method of service. to permit service of complaints by Rule 9134, which permits service on the The FINRA Rule 9550 Series sets forth electronic mail in FINRA disciplinary parties using the following methods: (1) the procedures for expedited proceedings due to heightened fair Personal service, (2) mail, or (3) courier; proceedings and the ability of the NAC process concerns. Further, as noted Rule 9134 does not permit service by to call for review a proposed decision above, FINRA will use another electronic mail. The proposed rule prepared under the Rule 9550 Series. permissible method of service if it has change temporarily amends Rule FINRA Rule 9559(h)(2) 21 sets forth the knowledge that the address used for 9132(b) to allow FINRA to serve the timing and method of service service by electronic mail is not current relevant documents or information by requirements for the parties’ exchange or functional, or if FINRA is notified by electronic mail and Rules 9133(b) and of proposed exhibit and witness lists in the relevant party that service by 9146(l) to require FINRA to serve advance of an expedited proceeding.22 electronic mail would cause a hardship. documents by electronic mail, unless FINRA Rule 9559(q)(2) 23 requires the The proposed relief to serve some the parties agree to an alternative NAC to serve its decision when it issues documents by electronic mail method of service. one and FINRA Rule 9559(q)(5) requires incorporated such considerations. The FINRA Rule 9300 Series sets forth the NAC to serve the decision on the the procedures for review of parties and all members with which the b. Amendments To Require Filing by disciplinary proceedings by the NAC respondent is associated. Rule Electronic Mail and FINRA Board and for applications 9559(q)(2) and (5) do not allow for FINRA’s current remote work for Commission review. FINRA Rules electronic mail as a method of service. environment and related restrictions on 9321,13 9341(c),14 9349(c),15 and The proposed rule change temporarily accessing FINRA buildings poses 9351(e) 16 require FINRA to serve amends Rule 9559(h)(2) to require significant logistical and other documents in connection with those FINRA to serve its exhibit and witness challenges on FINRA’s ability to timely proceedings. Service under those rules lists by electronic mail, unless the receive and process hard copy mail. In is governed by Rule 9134, which does parties agree to an alternative method of response, the proposed rule change also not permit electronic mail as a method service, and 9559(q)(2) and (5) to allow temporarily amends FINRA Rules of service. The proposed rule change for electronic mail as a method of 1012(a)(3),25 6490(e),26 9133(b), 9146(l), temporarily amends Rules 9321, service. 9524(a)(3)(A) and (B), and 9559(h)(2) to 9341(c), 9349(c), and 9351(e) to allow The FINRA Rule 9600 Series sets forth require the applicant, respondent, or for electronic mail as a method of the procedures for members to seek requesting party, depending on the rule, service. exemptive relief from a variety of to file or serve certain documents and The FINRA Rule 9520 Series sets forth FINRA rules. FINRA Rule 9630(e)(1) information by electronic mail, unless 24 the procedures for eligibility and (2) require the NAC to serve its the parties agree to an alternative proceedings and review of those decision pursuant to Rule 9134, which method of service. FINRA’s intent is to proceedings by the NAC and FINRA does not allow for electronic mail as a accommodate an applicant, respondent Board. FINRA Rules 9522(a)(4),17 method of service. The proposed rule or other party if service by electronic 9524(a)(3)(A) and (B),18 Rule change temporarily amends Rule mail is not feasible. The requested relief 9524(b)(3),19 and Rule 9525(e) 20 require 9630(e) to allow for electronic mail as a will allow FINRA to minimize the FINRA to serve documents in method of service. logistical and other challenges posed by connection with those proceedings, but FINRA believes the requested the current conditions and assist FINRA do not allow for electronic mail as a temporary relief to serve documents by in maintaining fair review processes and electronic mail in connection with the proceedings. 10 FINRA Rule 9132(b) (Service of Orders, above referenced rules is reasonably Notices, and Decisions by Adjudicator; How tailored to the needs and restraints on c. Amendments To Provide Extensions Served). the organization’s operations during the of Time 11 FINRA Rule 9133(b) (Service of Papers Other COVID–19 pandemic. The proposed Than Complaints, Orders, Notices or Decisions; Operating remotely, and with How Served). rule change strikes an appropriate numerous restrictions in place, also 12 FINRA Rule 9146(l) (Motions; General). balance by seeking relief that will makes it difficult for FINRA staff to 13 FINRA Rule 9321 (Transmission of Record). minimize disruptions to FINRA meet certain deadlines related to the 14 FINRA Rule 9341(c) (Oral Argument; Notice processes, and provide necessary adjudicatory and review processes set Regarding Oral Argument). forth in FINRA Rules 1015, 6490 and 15 FINRA Rule 9349(c) (National Adjudicatory 21 FINRA Rule 9559(h) (Hearing Procedures for 9559. Accordingly, the proposed rule Council Formal Consideration; Decision; Issuance Expedited Proceedings Under the Rule 9550 Series; of Decision After Expiration of Call for Review Transmission of Documents). Email is currently change requests temporary extensions of Period). permitted as a method of service under Rule time under these Rules. 16 FINRA Rule 9351(e) (Discretionary Review by 9559(h). FINRA Rule 1015 governs the process FINRA Board; Issuance of Decision After Expiration 22 As with the proposed temporary change to Rule by which an applicant can appeal an of Call for Review Period). 1015(a) noted supra in footnote 9, FINRA proposes adverse decision rendered by FINRA 17 FINRA Rules 9522(a)(4) (Initiation of Eligibility to temporarily amend FINRA Rule 9559(h) to also Proceeding; Member Regulation Consideration; suspend the requirements in Rule 9559(h)(1) and (2) pursuant to Rule 1014 or 1017 to the Service). that, if the specified documents are served by 18 FINRA Rule 9524(a)(3)(A) and (B) (National facsimile or email, they must also be served by 25 FINRA Rule 1012(a)(3), as temporarily Adjudicatory Council Consideration; Transmission either overnight courier or personal delivery. amended, will allow the applicant to file requested of Documents). 23 FINRA Rule 9559(q) (Hearing Procedures for documents or information using a method other 19 FINRA Rule 9524(b)(3) (National Adjudicatory Expedited Proceedings Under the Rule 9550 Series; than electronic mail upon agreement with FINRA. Council Consideration; Issuance of Decision After Call for Review by the National Adjudicatory 26 FINRA Rule 6490(e) (Processing of Company- Expiration of Call for Review Period). Council). Related Actions; Request for an Appeal to 20 FINRA Rule 9525(e) (Discretionary Review by 24 FINRA Rule 9630(e) (Procedures for Subcommittee of Uniform Practice Code the FINRA Board; Issuance of Decision). Exemptions; Appeal; Decision). Committee).

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NAC. Rule 1015(f)(1) provides that if a and review appeals from within the last rule change not become operative for 30 hearing is requested by the applicant or 90 days rather than the prior month. days after the date of the filing, so directed, the hearing must be held Rule 9559(q)(2) sets forth the FINRA can implement the proposed within 45 days after the filing of the deadlines for the Subcommittee of the rule change immediately. request with the NAC or service of the NAC to review a proposed decision 2. Statutory Basis notice by the Subcommittee.27 FINRA drafted by the Office of Hearing Officers proposed to temporarily amend Rule in connection with an expedited FINRA believes that the proposed rule 1015(f)(1) to require the hearing to take proceeding and issue a recommendation change is consistent with the provisions place within 135 days after the filing of to the NAC, if the proceeding is called of the request with the NAC or service of for review. The Subcommittee of the Section 15A(b)(6) of the Act,30 which the notice by the Subcommittee, NAC is required to meet and conduct its requires, among other things, that providing a 90-day extension to the review of the proposed decision, and FINRA rules must be designed to existing 45-day deadline. Rule 1015(i) provide its recommendation to the NAC, prevent fraudulent and manipulative (Subcommittee Recommendation) no later than 40 and 60 days, acts and practices, to promote just and requires that the Subcommittee present respectively, after the call for review. equitable principles of trade, and, in its recommended decision in writing to The proposed rule change temporarily general, to protect investors and the the NAC within 60 days after the amends Rule 9559(q)(2) to require a public interest. FINRA believes that the hearing held pursuant to 1015(f), and Subcommittee of the NAC to meet and proposed rule change is also consistent 31 not later than seven days before the conduct its review within 70 days and with Section 15A(b)(8) of the Act, meeting of the NAC at which the make a recommendation to the NAC which requires, among other things, that membership proceeding shall be within 90 days, providing 30-day FINRA rules provide a fair procedure for considered. The proposed rule change extensions to the existing deadlines. the disciplining of members and temporarily amends Rule 1015(i) to These extensions of time requested in persons associated with members. require the Subcommittee to present its connection with Rules 1015(f)(1) and (i), The proposed rule change would decision in writing 150 days after the 6490(e), and 9559(q)(2) provide grant FINRA, and in some cases another date of the hearing held pursuant to reasonable grace periods to adjust to party to a proceeding, temporary Rule 1015(f), providing a 90-day current conditions, the remote work modifications to its procedural extension to the existing 60-day environment and the corresponding requirements in order to allow FINRA to deadline. challenges, while maintaining fair and maintain fair processes and protect Rule 6490 codifies the requirements orderly adjudicatory and review investors while operating in a remote in Exchange Act Rule 10b–17 for issuers processes under these Rules. work environment, and with of a class of publicly trading securities corresponding restrictions on its to provide timely notice to FINRA of d. Amendment for In-Person Attendance activities. It is in the public interest, and certain corporate actions (e.g., dividend Requirement consistent with the Act’s purpose, for or other distribution of cash or FINRA Rule 9341(d) 28 provides that FINRA to receive this relief to specify securities, stock split or reverse split, oral arguments made in connection with filing and service methods, extend rights or subscription offering). FINRA the review of a FINRA disciplinary certain time periods, and modify the reviews related documentation and, proceeding take place before the format of oral argument for FINRA under certain circumstances, the Subcommittee or, if applicable, the disciplinary and eligibility proceedings documentation may not be processed if Extended Proceeding Committee and and other review processes in order to it is deemed deficient. Rule 6490(e) sets requires all members of the relevant cope with the current pandemic forth the process for appealing such a Subcommittee or Extended Proceeding conditions. FINRA’s disciplinary and determination. Rule 6490(e) requires Committee to be present for the oral eligibility proceedings and other review that a Requesting Party appeal an argument.29 The proposed rule change processes serve a critical role in adverse determination within seven (7) amends Rule 9341(d) to temporarily providing investor protection and calendar days of receiving notice of the permit oral arguments to be conducted maintaining fair and orderly markets by, determination under the Rule, otherwise by video conference. The requested for example, sanctioning misconduct the determination will constitute final relief is a reasonable accommodation to and preventing further customer harm FINRA action. Rule 6490(e) further protect the health and safety of all by members and associated persons. As requires that the Subcommittee tasked parties participating in these noted above, the proposed rule change with reviewing appeals under this Rule adjudicatory processes while avoiding strikes an appropriate balance by to convene once each calendar month to unnecessary delays to these seeking needed temporary relief in consider all appeals received during the proceedings. connection with rules and requirements prior month. The proposed rule change FINRA would be able to implement that do not raise heightened fairness will temporarily amend Rule 6490(e) to the proposed rule change immediately concerns. (i) extend the time for a Requesting upon effectiveness of this proposed rule B. Self-Regulatory Organization’s Party to file an appeal from seven change. FINRA has filed the proposed Statement on Burden on Competition calendar days to 30 calendar days, and rule change for immediate effectiveness FINRA does not believe that the (ii) permit the Subcommittee to convene and has requested that the Commission temporary proposed rule change will once every 90 days instead of monthly waive the requirement that the proposed result in any burden on competition that is not necessary or appropriate in 27 FINRA Rule 1015(d) (Appointment of 28 FINRA Rule 9341(d) (Oral Argument; Subcommittee) requires that the NAC (or Review Attendance Required). furtherance of the purposes of the Act. Subcommittee as defined in Rule 9120) appoint a 29 See FINRA Rule 9331 (Appointment of The proposed rule change is intended Subcommittee to participate in the review of the Subcommittee or Extended Proceeding Committee) solely to provide temporary relief from appeal and provides that the Subcommittee shall be provides that the NAC or the Review Subcommittee procedural requirements in FINRA rules composed of two or more persons who shall be shall appoint a Subcommittee or an Extended current or past members of the National Proceeding Committee to participate, subject to Adjudicatory Council or former Directors or Rule 9345, in a disciplinary proceeding appealed or 30 15 U.S.C. 78o–3(b)(6). Governors. called for review. 31 15 U.S.C. 78o–3(b)(8).

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that would otherwise impose efficiently and effectively implemented Electronic Comments unnecessary impediments to FINRA’s when physical proximity and full access • operations and FINRA’s investor to necessary products and services are Use the Commission’s internet protection goals. FINRA does not unhampered. FINRA noted that the comment form (http://www.sec.gov/ believe that the proposed rule change proposed rule change will provide rules/sro.shtml); or will have any material negative effect on temporary relief on many of these • Send an email to rule-comments@ members and will not impose any new prescriptions to accommodate the sec.gov. Please include File Number SR– costs. impact that the outbreak has had on, FINRA–2020–015 on the subject line. among other things, FINRA employees’ C. Self-Regulatory Organization’s Paper Comments Statement on Comments on the ability to interact internally, with committees and with member firms. Proposed Rule Change Received From • Send paper comments in triplicate FINRA believes that, given the impacts Members, Participants, or Others to Secretary, Securities and Exchange of the COVID–19 crisis, there is a FINRA has neither solicited nor significant benefit to quickly Commission, 100 F Street NE, received comments on the proposed implementing this proposed rule Washington, DC 20549–1090. rule change. change. The Commission also notes that All submissions should refer to File III. Date of Effectiveness of the the proposal provides only temporary Number SR–FINRA–2020–015. This file Proposed Rule Change and Timing for relief from, as FINRA states, the timing, number should be included on the Commission Action method of service and other procedural subject line if email is used. To help the requirements, described above, during Because the foregoing proposed rule Commission process and review your the period in which FINRA’s operations change does not: (i) Significantly affect comments more efficiently, please use the protection of investors or the public are impacted by COVID–19. As only one method. The Commission will interest; (ii) impose any significant proposed, these changes would be in post all comments on the Commission’s place through June 15, 2020.34 FINRA burden on competition; and (iii) become internet website (http://www.sec.gov/ also noted that the amended rules will operative for 30 days from the date on rules/sro.shtml). Copies of the revert back to their current state at the which it was filed, or such shorter time submission, all subsequent as the Commission may designate, it has conclusion of the temporary relief period and, if applicable, any extension amendments, all written statements become effective pursuant to Section with respect to the proposed rule 32 thereof. For these reasons, the 19(b)(3)(A) of the Act and Rule 19b– change that are filed with the 33 Commission believes that waiver of the 4(f)(6) thereunder. Commission, and all written A proposed rule change filed under 30-day operative delay is consistent communications relating to the Rule 19b–4(f)(6) normally does not with the protection of investors and the proposed rule change between the become operative for 30 days after the public interest. Accordingly, the date of filing. However, pursuant to Commission hereby waives the 30-day Commission and any person, other than Rule 19b–4(f)(6)(iii), the Commission operative delay and designates the those that may be withheld from the may designate a shorter time if such proposal operative upon filing.35 public in accordance with the action is consistent with the protection At any time within 60 days of the provisions of 5 U.S.C. 552, will be of investors and the public interest. filing of the proposed rule change, the available for website viewing and FINRA has asked the Commission to Commission summarily may printing in the Commission’s Public waive the 30-day operative delay so that temporarily suspend such rule change if Reference Room, on business days the proposed rule change may become it appears to the Commission that such between the hours of 10:00 a.m. and operative immediately upon filing. As action is necessary or appropriate in the 3:00 p.m., located at 100 F Street NE, noted above, FINRA stated that the public interest, for the protection of Washington, DC 20549. Copies of such requested relief will help minimize the investors, or otherwise in furtherance of filing also will be available for impact of the COVID–19 outbreak on the purposes of the Act. If the inspection and copying at the principal FINRA’s operations, allowing FINRA to Commission takes such action, the office of FINRA. All comments received continue critical adjudicatory and Commission shall institute proceedings will be posted without change. review processes in a reasonable and to determine whether the proposed rule fair manner and meet its critical should be approved or disapproved. Persons submitting comments are investor protection goals, while also cautioned that we do not redact or edit IV. Solicitation of Comments following best practices with respect to personal identifying information from the health and safety of its employees. Interested persons are invited to comment submissions. You should FINRA also stated that while social submit written data, views and submit only information that you wish distancing requirements have been arguments concerning the foregoing, to make available publicly. All implemented across the United States to including whether the proposed rule submissions should refer to File benefit the health and welfare of its change is consistent with the Act. Number SR–FINRA–2020–015 and citizens, certain internal processes, as Comments may be submitted by any of should be submitted on or before June well as interactions with member firms, the following methods: 17, 2020. required by FINRA rules are more For the Commission, by the Division of 34 As noted above, see supra note 5, FINRA states Trading and Markets, pursuant to delegated 32 that if it requires temporary relief from the rule 15 U.S.C. 78s(b)(3)(A). authority.36 33 17 CFR 240.19b–4(f)(6). In addition, Rule 19b– requirements identified in this proposal beyond 4(f)(6)(iii) requires a self-regulatory organization to June 15, 2020, it may submit a separate rule filing J. Matthew DeLesDernier, to extend the effectiveness of the temporary relief give the Commission written notice of its intent to Assistant Secretary. file the proposed rule change, along with a brief under these rules. description and text of the proposed rule change, 35 For purposes only of waiving the 30-day [FR Doc. 2020–11287 Filed 5–26–20; 8:45 am] at least five business days prior to the date of filing operative delay, the Commission has considered the BILLING CODE 8011–01–P of the proposed rule change, or such shorter time proposed rule change’s impact on efficiency, as designated by the Commission. FINRA has competition, and capital formation. See 15 U.S.C. satisfied this requirement. 78c(f). 36 17 CFR 200.30–3(a)(12).

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SECURITIES AND EXCHANGE as part of its Sponsoring Member identify and monitor risks to financial COMMISSION application and Sponsoring Members to stability because the repo market serves have a current LEI on file with FICC for a crucial role in providing short-term [Release No. 34–88910; File No. SR–FICC– 2020–002] each existing Sponsored Member and to funding, among other critical functions, provide an LEI for each newly added for U.S. markets.12 Specifically, the Self-Regulatory Organizations; Fixed Sponsored Member it would like to Release explains that the LEI Income Clearing Corporation; Order sponsor into membership. Additionally, requirement will facilitate an Approving a Proposed Rule Change To FICC proposes to require any Netting understanding of repo market Amend the Government Securities Member, CCIT Member, or Sponsoring participants’ exposures, concentrations, Division Rulebook Relating to the Member who fails to maintain current and network structures.13 LEIs on file to indemnify FICC for any Legal Entity Identifier Requirement B. Proposed Rule Changes losses and Legal Actions that arise due May 20, 2020. to that failure. Currently, FICC does not require that its Members obtain LEIs or provide LEIs I. Introduction A. Background to FICC either as part of application On March 25, 2020, Fixed Income The Office of Financial Research materials or as a Member.14 FICC Clearing Corporation (‘‘FICC’’) filed (‘‘OFR’’) of the U.S. Department of the proposes to add a new defined term to with the Securities and Exchange Treasury has adopted a rule (‘‘OFR its Rules for a Legal Entity Identifier. Commission (‘‘Commission’’), pursuant Regulation’’) establishing a data FICC uses the terminology of the Global to Section 19(b)(1) of the Securities collection for centrally cleared Legal Entity Identifier in defining LEI in Exchange Act of 1934 (‘‘Act’’) 1 and Rule transactions in the U.S. repurchase its GSD Rules.15 Moreover, to comply 19b–4 thereunder,2 proposed rule agreement (‘‘repo’’) market.7 To with the OFR Regulation, FICC proposes change SR–FICC–2020–002. The facilitate this collection, OFR requires to modify the GSD Rules to require proposed rule change was published for ‘‘covered reporters,’’ defined as certain certain Member applicants and comment in the Federal Register on central counterparties who clear repo Members to obtain, provide, and April 9, 2020.3 The Commission did not transactions, to submit to OFR daily maintain current LEIs on file with FICC receive any comment letters on the reports including trade and collateral in the two following areas. proposed rule change. For the reasons information on all repo transactions (1) Netting and CCIT Member discussed below, the Commission is cleared through any of its services. FICC Applicants and Members approving the proposed rule change. meets the definition of a covered FICC proposes to amend the GSD II. Description of the Proposed Rule reporter because it acts as the central 8 Change counterparty (‘‘CCP’’) in repo Rules to include the following two transactions cleared through its services. requirements for its Netting Members FICC proposes to modify its FICC offers its repo transaction clearing and CCIT Members and for applicants to Government Securities Division services through its Netting System become such Members. First, FICC 4 5 (‘‘GSD’’) Rulebook (‘‘Rules’’) to services and CCIT Services. To comply proposes to amend its GSD Rules to require: (1) Netting and CCIT Member with this requirement, FICC must require each Netting Member applicant applicants to obtain and provide a Legal submit, as part of its daily reports, the and each CCIT Member applicant to 6 Entity Identifier (‘‘LEI’’) to FICC as part LEI of each clearing member involved in obtain and provide an LEI to FICC as of its membership application and each reported repo transaction.9 part of its membership application. This Netting and CCIT Members to have a OFR states in the Release that the change will be implemented upon current LEI on file with FICC at all reporting requirement will enhance the Commission approval. times; and (2) Sponsoring Member ability of the Financial Stability Second, FICC proposes to amend its applicants to provide FICC with an LEI Oversight Council (‘‘Council’’),10 GSD Rules to add language that would for each Sponsored Member applicant Council member agencies,11 and OFR to require each Netting Member and each CCIT Member to have a current LEI on 1 15 U.S.C. 78s(b)(1). 7 84 FR 4975 (February 20, 2019) (hereinafter the file with FICC at all times. Existing 2 17 CFR 240.19b–4. ‘‘Release’’). The OFR Regulation is codified at 12 Netting Members and CCIT Members 3 Securities Exchange Act Release No. 88557 CFR part 1610. will have 60 calendar days from the date (April 3, 2020), 85 FR 19979 (April 9, 2020) (SR– 8 As a CCP, FICC interposes itself between FICC–2020–002) (‘‘Notice’’). counterparties to a repo transaction, acting of the Commission’s approval to submit 4 FICC operates two divisions, GSD and the functionally as the buyer to every seller and the their LEIs to FICC. Mortgage Backed Securities Division (‘‘MBSD’’). seller to every buyer to ensure the performance of Additionally, FICC proposes to GSD provides trade comparison, netting, risk each contract. 17 CFR 240.17Ad–22(a)(2). provide that a Netting Member or CCIT management, settlement, and central counterparty 9 In the Release, OFR recognizes that certain rule services for the U.S. Government securities market. changes may be necessary for a covered reporter MBSD provides the same services for the U.S. like FICC to comply with this requirement and Finance Agency, National Credit Union mortgage-backed securities market. GSD and MBSD notes that it expects such covered reporters to Administration, Office of the Comptroller of the maintain separate sets of rules, margin models, and effectuate rulemaking, subject to any necessary Currency, Securities and Exchange Commission, clearing funds. The proposed rule change relates regulatory approval, to require that its participants Treasury Department, and Consumer Financial solely to GSD. obtain and provide LEIs to meet a covered reporter’s Protection Bureau. See https://www.treasury.gov/ 5 Capitalized terms not defined herein are defined OFR reporting requirements. Release, supra note 7, initiatives/fsoc/about/Pages/FSOC-Member- in the Rules, available at http://www.dtcc.com/ at 4980–81. Agencies.aspx. legal/rules-and-procedures. 10 The Council was established by the Dodd- 12 See Release, supra note 7, at 4975. 6 A ‘‘Legal Entity Identifier’’ is a 20-character Frank Wall Street Reform and Consumer Protection 13 See id. at 4980. reference code used to uniquely identify legally Act. The Council is charged with identifying risks 14 See Notice, supra note 3, at 19980. distinct entities that engage in financial to the financial stability of the United States, among 15 See supra note 6. The Global Legal Entity transactions. The Legal Entity Identifier is based on other things. See https://home.treasury.gov/policy- Identifier Foundation was established by the the ISO 17442 standard developed by the issues/financial-markets-financial-institutions-and- Financial Stability Board in June 2014 to support International Organization for Standardization and fiscal-service/fsoc. the implementation and use of Legal Entity satisfies the standards implemented by the Global 11 The Council member agencies are the Board of Identifiers. The Financial Stability Board is an Legal Entity Identifier Foundation. See https:// Governors of the Federal Reserve System, international body that monitors and makes www.gleif.org/en/about-lei/introducing-the-legal- Commodity Futures Trading Commission, Federal recommendations about the global financial system. entity-identifier-lei. Deposit Insurance Corporation, Federal Housing www.fsb.org.

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Member must indemnify FICC, among proposed rule change of a self- SECURITIES AND EXCHANGE others (collectively, the ‘‘LEI regulatory organization if it finds that COMMISSION Indemnified Parties’’), for any and all such proposed rule change is consistent [Release No. 34–88918; File No. 4–762] losses, liabilities, expenses, and Legal with the requirements of the Act and 16 Actions suffered or incurred by the rules and regulations thereunder Program for Allocation of Regulatory LEI Indemnified Parties arising from a applicable to such organization. After Responsibilities Pursuant to Rule 17d– Netting Member’s or CCIT Member’s careful consideration, the Commission 2; Notice of Filing of Proposed Plan for failure to have its current LEI on file finds that the proposed rule change is the Allocation of Regulatory with FICC. FICC states that the proposed consistent with the requirements of the Responsibilities Between the Financial indemnity clause is appropriate Act and the rules and regulations Industry Regulatory Authority, Inc. and because, in fulfilling its regulatory thereunder applicable to FICC. In MEMX LLC obligations under the OFR Regulation, FICC would be relying upon Netting particular, the Commission finds that May 20, 2020. Members and CCIT Members to keep the proposed rule change is consistent Pursuant to Section 17(d) of the 20 their LEI on file with FICC current.17 with Section 17A(b)(3)(F) of the Act, Securities Exchange Act of 1934 for the reasons described below. (‘‘Act’’),1 and Rule 17d–2 thereunder,2 (2) Sponsoring Members Applicants and notice is hereby given that on April 16, Members Section 17A(b)(3)(F) of the Act requires, in part, that clearing agency 2020, the Financial Industry Regulatory FICC proposes to amend the GSD rules be designed to protect investors Authority, Inc. (‘‘FINRA’’) and MEMX Rules to include the following three and the public interest.21 As stated in LLC (‘‘MEMX’’) (together with FINRA, requirements for its Sponsoring Member Section II.A above, the OFR Regulation the ‘‘Parties’’) filed with the Securities applicants and Sponsoring Members. will enhance the ability of the Council and Exchange Commission First, each Netting Member or CCIT to identify and monitor risks to financial (‘‘Commission’’ or ‘‘SEC’’) a plan for the Member who submits an application to stability because the repo market serves allocation of regulatory responsibilities, FICC in order to become a Sponsoring dated April 16, 2020 (‘‘17d–2 Plan’’ or Member must submit the LEIs of its a crucial role in providing short-term funding, among other critical functions, the ‘‘Plan’’). The Commission is Sponsored Member applicants as part of publishing this notice to solicit for U.S. markets. Specifically, the LEI the Sponsoring Member application. comments on the 17d–2 Plan from requirement will facilitate an This change will be implemented upon interested persons. Commission approval. understanding of repo market Second, each Sponsoring Member participants’ exposures, concentrations, I. Introduction must provide the LEI for each of its and network structures. Therefore, the Section 19(g)(1) of the Act,3 among existing Sponsored Members so that Commission believes the proposed rule other things, requires every self- FICC has a current LEI for each such change could serve to protect investors regulatory organization (‘‘SRO’’) Sponsored Member at all times. For and the public interest. registered as either a national securities existing Sponsored Members, exchange or national securities IV. Conclusion Sponsoring Members will have 60 association to examine for, and enforce calendar days from the date of the On the basis of the foregoing, the compliance by, its members and persons Commission’s approval to submit the Commission finds that the proposed associated with its members with the LEIs to FICC. Third, each Sponsoring Act, the rules and regulations Member must provide the LEI for any rule change is consistent with the requirements of the Act and, in thereunder, and the SRO’s own rules, new Sponsored Member it wishes to unless the SRO is relieved of this sponsor into membership as a particular, with the requirements of Section 17A of the Act 22 and the rules responsibility pursuant to Section 17(d) Sponsored Member. This change will be or Section 19(g)(2) of the Act.4 Without and regulations promulgated implemented upon Commission this relief, the statutory obligation of thereunder. approval. each individual SRO could result in a Additionally, FICC proposes to It is therefore ordered, pursuant to pattern of multiple examinations of include an indemnity clause, as Section 19(b)(2) of the Act 23 that broker-dealers that maintain described above, for Sponsoring proposed rule change SR–FICC–2020– memberships in more than one SRO Members because, like Netting Members 002, be, and hereby is, APPROVED.24 (‘‘common members’’). Such regulatory and CCIT Members, FICC would be For the Commission, by the Division of duplication would add unnecessary relying on the Sponsoring Members to expenses for common members and keep Sponsored Member LEIs on file Trading and Markets, pursuant to delegated 18 authority.25 their SROs. with FICC current. Section 17(d)(1) of the Act 5 was J. Matthew DeLesDernier, III. Discussion and Commission intended, in part, to eliminate Findings Assistant Secretary. unnecessary multiple examinations and [FR Doc. 2020–11284 Filed 5–26–20; 8:45 am] 6 Section 19(b)(2)(C) of the Act 19 regulatory duplication. With respect to directs the Commission to approve a BILLING CODE 8011–01–P a common member, Section 17(d)(1) authorizes the Commission, by rule or 16 The proposed rule change would define ‘‘Legal Action,’’ to mean and include any claim, 20 15 U.S.C. 78q–1(b)(3)(F). 1 15 U.S.C. 78q(d). 2 counterclaim, demand, action, suit, countersuit, 21 Id. 17 CFR 240.17d–2. 3 arbitration, inquiry, proceeding or investigation 22 15 U.S.C. 78q–1. 15 U.S.C. 78s(g)(1). before any federal, state or foreign court or other 4 15 U.S.C. 78q(d) and 15 U.S.C. 78s(g)(2), 23 15 U.S.C. 78s(b)(2). tribunal, or any investigative or regulatory agency respectively. 24 or self-regulatory organization. Notice, supra note 3, In approving the proposed rule change, the 5 15 U.S.C. 78q(d)(1). at 19980. Commission considered the proposals’ impact on 6 See Securities Act Amendments of 1975, Report 17 See id. efficiency, competition, and capital formation. 15 of the Senate Committee on Banking, Housing, and 18 See id. at 19981. U.S.C. 78c(f). Urban Affairs to Accompany S. 249, S. Rep. No. 94– 19 15 U.S.C. 78s(b)(2)(C). 25 17 CFR 200.30–3(a)(12). 75, 94th Cong., 1st Session 32 (1975).

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order, to relieve an SRO of the II. Proposed Plan and any MEMX rules that are not responsibility to receive regulatory Common Rules.13 reports, to examine for and enforce The proposed 17d–2 Plan is intended The text of the proposed 17d–2 Plan compliance with applicable statutes, to reduce regulatory duplication for is as follows: rules, and regulations, or to perform firms that are common members of both 10 AGREEMENT BETWEEN FINANCIAL other specified regulatory functions. MEMX and FINRA. Pursuant to the proposed 17d–2 Plan, FINRA would INDUSTRY REGULATORY To implement Section 17(d)(1), the assume certain examination and AUTHORITY, INC. AND MEMX LLC Commission adopted two rules: Rule enforcement responsibilities for PURSUANT TO RULE 17d–2 UNDER 17d–1 and Rule 17d–2 under the Act.7 common members with respect to THE SECURITIES EXCHANGE ACT OF Rule 17d–1 authorizes the Commission certain applicable laws, rules, and 1934 to name a single SRO as the designated regulations. This Agreement, by and between the examining authority (‘‘DEA’’) to The text of the Plan delineates the Financial Industry Regulatory examine common members for proposed regulatory responsibilities Authority, Inc. (‘‘FINRA’’) and MEMX compliance with the financial with respect to the Parties. Included in LLC (‘‘MEMX’’), is made this 16th day responsibility requirements imposed by the proposed Plan is an exhibit (the of April, 2020 (the ‘‘Agreement’’), the Act, or by Commission or SRO ‘‘MEMX Certification of Common pursuant to Section 17(d) of the rules.8 When an SRO has been named as Rules,’’ referred to herein as the Securities Exchange Act of 1934 (the a common member’s DEA, all other ‘‘Certification’’) that lists every MEMX ‘‘Exchange Act’’) and Rule 17d–2 SROs to which the common member rule, and select federal securities laws, thereunder, which permits agreements belongs are relieved of the responsibility rules, and regulations, for which FINRA between self-regulatory organizations to to examine the firm for compliance with would bear responsibility under the allocate regulatory responsibility to the applicable financial responsibility Plan for overseeing and enforcing with eliminate regulatory duplication. FINRA rules. On its face, Rule 17d–1 deals only respect to MEMX members that are also and MEMX may be referred to with an SRO’s obligations to enforce members of FINRA and the associated individually as a ‘‘party’’ and together member compliance with financial persons therewith (‘‘Dual Members’’). as the ‘‘parties.’’ responsibility requirements. Rule 17d–1 Whereas, FINRA and MEMX desire to Specifically, under the 17d–2 Plan, reduce duplication in the examination does not relieve an SRO from its FINRA would assume examination and obligation to examine a common and surveillance of their Dual Members enforcement responsibility relating to (as defined herein) and in the filing and member for compliance with its own compliance by Dual Members with the processing of certain registration and rules and provisions of the federal rules of MEMX that are substantially membership records; and securities laws governing matters other similar to the applicable rules of Whereas, FINRA and MEMX desire to than financial responsibility, including FINRA,11 as well as any provisions of execute an agreement covering such sales practices and trading activities and the federal securities laws and the rules subjects pursuant to the provisions of practices. and regulations thereunder delineated Rule 17d–2 under the Exchange Act and To address regulatory duplication in in the Certification (‘‘Common Rules’’). to file such agreement with the these and other areas, the Commission In the event that a Dual Member is the Securities and Exchange Commission adopted Rule 17d–2 under the Act.9 subject of an investigation relating to a (the ‘‘SEC’’ or ‘‘Commission’’) for its Rule 17d–2 permits SROs to propose transaction on MEMX, the plan approval. joint plans for the allocation of acknowledges that MEMX may, in its Now, therefore, in consideration of regulatory responsibilities with respect discretion, exercise concurrent the mutual covenants contained to their common members. Under jurisdiction and responsibility for such hereinafter, FINRA and MEMX hereby 12 paragraph (c) of Rule 17d–2, the matter. agree as follows: Commission may declare such a plan Under the Plan, MEMX would retain 1. Definitions. Unless otherwise effective if, after providing for full responsibility for surveillance, defined in this Agreement or the context appropriate notice and comment, it examination, investigation and otherwise requires, the terms used in determines that the plan is necessary or enforcement with respect to trading this Agreement shall have the same meaning as they have under the appropriate in the public interest and activities or practices involving MEMX’s Exchange Act and the rules and for the protection of investors; to foster own marketplace, including, without regulations thereunder. As used in this cooperation and coordination among the limitation, registration pursuant to its Agreement, the following terms shall SROs; to remove impediments to, and applicable rules of associated persons (i.e., registration rules that are not have the following meanings: foster the development of, a national (a) ‘‘MEMX Rules’’ or ‘‘FINRA Rules’’ market system and a national clearance Common Rules); its duties as a DEA pursuant to Rule 17d–1 under the Act; shall mean: (i) The rules of MEMX, or and settlement system; and is in (ii) the rules of FINRA, respectively, as conformity with the factors set forth in the rules of an exchange or association Section 17(d) of the Act. Commission 10 The proposed 17d–2 Plan refers to these common members as ‘‘Dual Members.’’ See are defined in Exchange Act Section approval of a plan filed pursuant to Rule Paragraph 1(c) of the proposed 17d–2 Plan. 3(a)(27). 17d–2 relieves an SRO of those 11 See paragraph 1(b) of the proposed 17d–2 Plan (b) ‘‘Common Rules’’ shall mean regulatory responsibilities allocated by (defining Common Rules). See also paragraph 1(f) MEMX Rules that are substantially the plan to another SRO. of the proposed 17d–2 Plan (defining Regulatory similar to the applicable FINRA Rules Responsibilities). Paragraph 2 of the Plan provides that annually, or more frequently as required by and certain provisions of the Exchange 7 17 CFR 240.17d–1 and 17 CFR 240.17d–2, changes in either MEMX rules or FINRA rules, the Act and SEC rules set forth on Exhibit respectively. parties shall review and update, if necessary, the 1 in that examination or surveillance for 8 See Securities Exchange Act Release No. 12352 list of Common Rules. Further, paragraph 3 of the compliance with such provisions and (April 20, 1976), 41 FR 18808 (May 7, 1976). Plan provides that MEMX shall furnish FINRA with 9 See Securities Exchange Act Release No. 12935 a list of Dual Members, and shall update the list no rules would not require FINRA to (October 28, 1976), 41 FR 49091 (November 8, less frequently than once each calendar quarter. 1976). 12 See paragraph 6 of the proposed 17d–2 Plan. 13 See paragraph 2 of the proposed 17d–2 Plan.

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develop one or more new examination 2. Regulatory and Enforcement 3. Dual Members. Prior to the or surveillance standards, modules, Responsibilities. FINRA shall assume Effective Date, MEMX shall furnish procedures, or criteria in order to Regulatory Responsibilities and FINRA with a current list of Dual analyze the application of the provision Enforcement Responsibilities for Dual Members, which shall be updated no or rule, or a Dual Member’s activity, Members. Attached as Exhibit 1 to this less frequently than once each quarter. conduct, or output in relation to such Agreement and made part hereof, 4. No Charge. There shall be no provision or rule; provided, however, MEMX furnished FINRA with a current charge to MEMX by FINRA for Common Rules shall not include the list of Common Rules and certified to performing the Regulatory application of the SEC, MEMX or FINRA that such rules that are MEMX Responsibilities and Enforcement FINRA rules as they pertain to Rules are substantially similar to the Responsibilities under this Agreement violations of insider trading activities, corresponding FINRA Rules (the except as otherwise agreed by the which is covered by a separate 17d–2 ‘‘Certification’’). FINRA hereby agrees parties, either herein or in a separate Agreement by and among Cboe BZX that the rules listed in the Certification agreement. Exchange, Inc., Cboe BYX Exchange, are Common Rules as defined in this 5. Applicability of Certain Laws, Inc., Chicago Stock Exchange, Inc., Cboe Agreement. Each year following the Rules, Regulations or Orders. EDGA Exchange, Inc., Cboe EDGX Effective Date of this Agreement, or Notwithstanding any provision hereof, Exchange, Inc., Financial Industry more frequently if required by changes this Agreement shall be subject to any Regulatory Authority, Inc., Nasdaq BX, in either the rules of MEMX or FINRA, statute, or any rule or order of the Inc., Nasdaq PHLX LLC, The Nasdaq MEMX shall submit an updated list of Commission. To the extent such statute, Stock Market LLC, NYSE National, Inc., Common Rules to FINRA for review rule or order is inconsistent with this New York Stock Exchange LLC, NYSE which shall add MEMX Rules not Agreement, the statute, rule or order American LLC, NYSE Arca Inc., included in the current list of Common shall supersede the provision(s) hereof Investors’ Exchange LLC and Long-Term Rules that qualify as Common Rules as to the extent necessary for them to be Stock Exchange, Inc. effective August 1, defined in this Agreement; delete properly effectuated and the 2019, as may be amended from time to MEMX Rules included in the current provision(s) hereof in that respect shall time. Common Rules shall not include list of Common Rules that no longer be null and void. any provisions regarding (i) notice, qualify as Common Rules as defined in 6. Notification of Violations. reporting or any other filings made this Agreement; and confirm that the (a) In the event that FINRA becomes directly to or from MEMX, (ii) remaining rules on the current list of aware of apparent violations of any incorporation by reference of MEMX Common Rules continue to be MEMX MEMX Rules, which are not listed as Rules that are not Common Rules, (iii) Rules that qualify as Common Rules as Common Rules, discovered pursuant to exercise of discretion in a manner that defined in this Agreement. Within 30 the performance of the Regulatory differs from FINRA’s exercise of days of receipt of such updated list, Responsibilities assumed hereunder, discretion including, but not limited to FINRA shall confirm in writing whether FINRA shall notify MEMX of those the rules listed in any updated list are exercise of exemptive authority, by apparent violations for such response as Common Rules as defined in this MEMX, (iv) prior written approval of MEMX deems appropriate. With respect Agreement. Notwithstanding anything MEMX and (v) payment of fees or fines to apparent violations of any MEMX herein to the contrary, it is explicitly to MEMX. Rules by any Router Member, FINRA understood that the term ‘‘Regulatory (c) ‘‘Dual Members’’ shall mean those shall not make referrals to MEMX Responsibilities’’ does not include, and MEMX members that are also members pursuant to this paragraph 6. Such MEMX shall retain full responsibility of FINRA and the associated persons apparent violations shall be processed for (unless otherwise addressed by therewith. by, and enforcement proceedings in separate agreement or rule) (collectively, (d) ‘‘Effective Date’’ shall be the date respect thereto will be conducted by, the ‘‘Retained Responsibilities’’) the this Agreement is approved by the following: FINRA as provided in this Agreement. Commission. (a) Surveillance, examination, (b) In the event that MEMX becomes (e) ‘‘Enforcement Responsibilities’’ investigation and enforcement with aware of apparent violations of any shall mean the conduct of appropriate respect to trading activities or practices Common Rules, discovered pursuant to proceedings, in accordance with involving MEMX’s own marketplace for the performance of the Retained FINRA’s Code of Procedure (the Rule rules that are not Common Rules; Responsibilities, MEMX shall notify 9000 Series) and other applicable (b) registration pursuant to its FINRA of those apparent violations and FINRA procedural rules, to determine applicable rules of associated persons such matters shall be handled by FINRA whether violations of Common Rules (i.e., registration rules that are not as provided in this Agreement. have occurred, and if such violations are Common Rules); (c) Apparent violations of Common deemed to have occurred, the (c) discharge of its duties and Rules shall be processed by, and imposition of appropriate sanctions as obligations as a Designated Examining enforcement proceedings in respect specified under FINRA’s Code of Authority pursuant to Rule 17d–1 under thereto shall be conducted by FINRA as Procedure and sanctions guidelines. the Exchange Act; and provided hereinbefore; provided, (f) ‘‘Regulatory Responsibilities’’ shall (d) any MEMX Rules that are not however, that in the event a Dual mean the examination responsibilities, Common Rules, except for MEMX Rules Member is the subject of an surveillance responsibilities and for any MEMX member that operates as investigation relating to a transaction on Enforcement Responsibilities relating to a facility (as defined in Section 3(a)(2) MEMX, MEMX may in its discretion compliance by the Dual Members with of the Exchange Act), acts as an assume concurrent jurisdiction and the Common Rules and the provisions outbound router for the MEMX and is a responsibility. of the Exchange Act and the rules and member of FINRA (‘‘Router Member’’) (d) Each party agrees to make regulations thereunder, and other as provided in paragraph 6. As of the available promptly all files, records and applicable laws, rules and regulations, date of this Agreement, MEMX witnesses necessary to assist the other each as set forth on Exhibit 1 attached Execution Services LLC is the only in its investigation or proceedings. hereto. Router Member. 7. Continued Assistance.

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(a) FINRA shall make available to 11. No Restrictions on Regulatory to such liability, loss or damages as MEMX all information obtained by Action. Nothing contained in this shall have been suffered by one or the FINRA in the performance by it of the Agreement shall restrict or in any way other of FINRA or MEMX and caused by Regulatory Responsibilities hereunder encumber the right of either party to the willful misconduct of the other with respect to the Dual Members conduct its own independent or party or their respective directors, subject to this Agreement. In particular, concurrent investigation, examination governors, officers or employees. No and not in limitation of the foregoing, or enforcement proceeding of or against warranties, express or implied, are made FINRA shall furnish MEMX any Dual Members, as either party, in its by FINRA or MEMX with respect to any information it obtains about Dual sole discretion, shall deem appropriate of the responsibilities to be performed Members which reflects adversely on or necessary. by each of them hereunder. their financial condition. MEMX shall 12. Termination. This Agreement may 17. Relief from Responsibility. make available to FINRA any be terminated by MEMX or FINRA at Pursuant to Sections 17(d)(1)(A) and information coming to its attention that any time upon the approval of the 19(g) of the Exchange Act and Rule 17d– reflects adversely on the financial Commission after six (6) month’s 2 thereunder, FINRA and MEMX join in condition of Dual Members or indicates written notice to the other party. requesting the Commission, upon its possible violations of applicable laws, 13. Arbitration. In the event of a approval of this Agreement or any part rules or regulations by such firms. dispute between the parties as to the thereof, to relieve MEMX of any and all (b) The parties agree that documents operation of this Agreement, MEMX and responsibilities with respect to matters or information shared shall be held in FINRA hereby agree that any such allocated to FINRA pursuant to this confidence, and used only for the dispute shall be settled by arbitration in Agreement; provided, however, that this purposes of carrying out their respective Washington, DC in accordance with the Agreement shall not be effective until regulatory obligations. Neither party rules of the American Arbitration the Effective Date. shall assert regulatory or other Association then in effect, or such other 18. Severability. Any term or privileges as against the other with procedures as the parties may mutually provision of this Agreement that is respect to documents or information agree upon. Judgment on the award invalid or unenforceable in any that is required to be shared pursuant to rendered by the arbitrator(s) may be jurisdiction shall, as to such this Agreement. entered in any court having jurisdiction. jurisdiction, be ineffective to the extent (c) The sharing of documents or Each party acknowledges that the timely of such invalidity or unenforceability information between the parties and complete performance of its without rendering invalid or pursuant to this Agreement shall not be obligations pursuant to this Agreement unenforceable the remaining terms and deemed a waiver as against third parties is critical to the business and operations provisions of this Agreement or of regulatory or other privileges relating of the other party. In the event of a affecting the validity or enforceability of to the discovery of documents or dispute between the parties, the parties any of the terms or provisions of this information. shall continue to perform their Agreement in any other jurisdiction. 8. Statutory Disqualifications. When respective obligations under this 19. Counterparts. This Agreement FINRA becomes aware of a statutory Agreement in good faith during the may be executed in one or more disqualification as defined in the resolution of such dispute unless and counterparts, each of which shall be Exchange Act with respect to a Dual until this Agreement is terminated in deemed an original, and such Member, FINRA shall determine accordance with its provisions. Nothing counterparts together shall constitute pursuant to Sections 15A(g) and/or in this Section 13 shall interfere with a one and the same instrument. Section 6(c) of the Exchange Act the party’s right to terminate this Agreement * * * * * acceptability or continued applicability as set forth herein. of the person to whom such 14. Notification of Members. MEMX Exhibit 1 disqualification applies and keep and FINRA shall notify Dual Members MEMX Certification of Common Rules MEMX advised of its actions in this of this Agreement after the Effective regard for such subsequent proceedings Date by means of a uniform joint notice. MEMX hereby certifies that the as MEMX may initiate. 15. Amendment. This Agreement may requirements contained in the rules 9. Customer Complaints. MEMX shall be amended in writing duly approved listed below for MEMX are identical to, forward to FINRA copies of all customer by each party. All such amendments or substantially similar to, the complaints involving Dual Members must be filed with and approved by the comparable FINRA (NASD) Rules, received by MEMX relating to FINRA’s Commission before they become Exchange Act provision or SEC rule Regulatory Responsibilities under this effective. identified (‘‘Common Rules’’). Agreement. It shall be FINRA’s 16. Limitation of Liability. Neither # Common Rules shall not include any responsibility to review and take FINRA nor MEMX nor any of their provisions regarding (i) notice, reporting appropriate action in respect to such respective directors, governors, officers or any other filings made directly to or complaints. or employees shall be liable to the other from MEMX, (ii) incorporation by 10. Advertising. FINRA shall assume party to this Agreement for any liability, reference of MEMX Rules that are not responsibility to review the advertising loss or damage resulting from or Common Rules, (iii) exercise of of Dual Members subject to the claimed to have resulted from any discretion in a manner that differs from Agreement, provided that such material delays, inaccuracies, errors or omissions FINRA’s exercise of discretion is filed with FINRA in accordance with with respect to the provision of including, but not limited to exercise of FINRA’s filing procedures and is Regulatory Responsibilities as provided exemptive authority, by MEMX, (iv) accompanied with any applicable filing hereby or for the failure to provide any prior written approval of MEMX and (v) fees set forth in FINRA Rules. such responsibility, except with respect payment of fees or fines to MEMX.

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MEMX Rule FINRA (NASD) Rule, Exchange Act Provision, SEC Rule

Rule 2.5 Restrictions, Interpretation and Policy .02 Continuing Edu- FINRA Rule 1240(a)(1)–(4) Continuing Education Requirements # ;. cation Requirements #. Rule 2.5 Restrictions, Interpretation and Policy .04 Termination of Em- FINRA By-Laws of the Corporation, Article V, Section 3 Notification by ployment. Member to the Corporation and Associated Person of Termination; Amendments to Notification; FINRA Rule 1010(e) Electronic Filing Requirements for Uniform Forms. Rule 2.6(g) Application Procedures for Membership or to become an FINRA By-Laws of the Corporation, Article IV, Section 1(c) Application Associated Person of a Member #. for Membership and Article V, Sec. 2(c); FINRA Rule 1010(c) Elec- tronic Filing Requirements for Uniform Forms. Rule 3.1 Business Conduct of Members ∧ ...... FINRA Rule 2010 Standards of Commercial Honor and Principles of Trade ∧. Rule 3.2 Violations Prohibited ∧ # ...... FINRA Rule 2010 Standards of Commercial Honor and Principles of Trade and FINRA Rule 3110 Supervision ∧. Rule 3.3 Use of Fraudulent Devices ∧ ...... FINRA Rule 2020 Use of Manipulative, Deceptive or Other Fraudu- lent Devices ∧. Rule 3.5 Communications with the Public ...... FINRA Rule 2210 Communications with the Public. Rule 3.6 Fair Dealing with Customers ...... FINRA Rule 2020 Use of Manipulative, Deceptive or Other Fraudu- lent Devices,∧ 1 FINRA Rule 2111 Suitability. Rule 3.7(a) Recommendations to Customers ...... FINRA Rule 2111(a) and SM .03 Suitability. Rule 3.8(a) The Prompt Receipt and Delivery of Securities ...... FINRA Rule 11860 COD Orders. Rule 3.8(b) The Prompt Receipt and Delivery of Securities ...... SEC Regulation SHO. Rule 3.9 Charges for Services Performed ...... FINRA Rule 2122 Charges for Services Performed. Rule 3.10 Use of Information ...... FINRA Rule 2060 Use of Information Obtained in Fiduciary Capacity. Rule 3.11 Publication of Transactions and Quotations # ...... FINRA Rule 5210 Publication of Transactions and Quotations. Rule 3.12 Offers at Stated Prices ...... FINRA Rule 5220 Offers at Stated Prices. Rule 3.13 Payments Involving Publications that Influence the Market FINRA Rule 5230 Payments Involving Publications that Influence the Price of a Security. Market Price of a Security. Rule 3.14 Disclosure on Confirmations ...... FINRA Rule 2232(a) Customer Confirmations and SEC Rule 10b–10 Confirmation of Transactions. Rule 3.15 Disclosure of Control ...... FINRA Rule 2262 Disclosure of Control Relationship With Issuer. Rule 3.16 Discretionary Accounts ...... FINRA Rule 3260 Discretionary Accounts. Rule 3.17 Customer’s Securities or Funds ...... FINRA Rule 2150(a) Improper Use of Customers’ Securities or Funds; Prohibition Against Guarantees and Sharing in Accounts—Improper Use. Rule 3.21 Communications with Customers ...... FINRA Rule 2210 Communications with the Public. Rule 3.18 Prohibition Against Guarantees ...... FINRA Rule 2150(b) Improper Use of Customers’ Securities or Funds; Prohibition Against Guarantees and Sharing in Accounts—Prohibi- tion Against Guarantees. Rule 3.19 Sharing in Accounts; Extent Permissible ...... FINRA Rule 2150(c)(1) Improper Use of Customers’ Securities or Funds; Prohibition Against Guarantees and Sharing in Accounts— Sharing in Accounts; Extent Permissible. Rule 3.21 Customer Disclosures ...... FINRA Rule 2265 Extended Hours Trading Risk Disclosure. Rule 3.20 Influencing or Rewarding Employees of Others; Gratuities .. FINRA Rule 3220 Influencing or Rewarding Employees of Others. Rule 3.26 Telemarketing and Interpretations and Policies .01 ...... FINRA Rule 3230 Telemarketing. Rule 4.1 Requirements # ...... Section 17 of the Exchange Act and rules thereunder and FINRA Rule 4511(a) and (c) General Requirements 2. Rule 4.3 Record of Written Complaints ...... FINRA Rule 4513 Records of Written Customer Complaints. Rule 5.1 Written Procedures # ...... FINRA Rule 3110(b)(1) Supervision-Written Procedures ∧. Rule 5.2 Responsibility of Members ...... FINRA Rule 3110 (a)(4), (b)(4) and (b)(7) Supervision—Supervisory System/Written Procedures—Review of Correspondence and Inter- nal Communications ∧. Rule 5.3 Records ...... FINRA Rule 3110 Supervision ∧. Rule 5.4 Review of Activities ...... FINRA Rule 3110(c) and (d) Supervision—Internal Inspections/Trans- action Review and Investigation ∧. Rule 5.6 Anti-Money Laundering Compliance Program # ...... FINRA Rule 3310 Anti-Money Laundering Compliance Program. Rule 9.3 Predispute Arbitration Agreements ...... FINRA Rule 2268 Requirements When Using Predispute Arbitration Agreements for Customer Accounts. Rule 11.16(e)(3) & (4) Trading Halts Due to Extraordinary Market Vola- FINRA Rule 6190(a) & (b) Compliance with Regulation NMS Plan to tility. Address Extraordinary Market Volatility. Rule 11.10(a)(5) Order Execution-Short Sales # ∧∧ ...... FINRA Rule 6182 Trade Reporting of Short Sales ∧∧. Rule 12.2 Fictitious Transactions ...... FINRA Rule 6140 Other Trading Practices and FINRA Rule 5210 Supplementary Material .02 Self-Trades. Rule 12.3 Excessive Sales By A Member ...... FINRA Rule 6140(c) Other Trading Practices. Rule 12.4 Manipulative Transactions ...... FINRA Rule 6140 Other Trading Practices. Rule 12.5 Dissemination of False Information ...... FINRA Rule 6140(e) Other Trading Practices. Rule 12.6 Prohibition Against Trading Ahead of Customer Orders #** FINRA Rule 5320 Prohibition Against Trading Ahead of Customer Or- ders **. Rule 12.9 Trade Shredding ...... FINRA Rule 5290 Order Entry and Execution Practices. Rule 12.11 Best Execution and Interpositioning ** ...... FINRA Rule 5310 Best Execution and Interpositioning **. Rule 12.13 Trading Ahead of Research Reports ** ...... FINRA Rule 5280 Trading Ahead of Research Reports **. Rule 12.14 Front Running of Block Transactions ** ...... FINRA Rule 5270 Front Running of Block Transactions **.

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MEMX Rule FINRA (NASD) Rule, Exchange Act Provision, SEC Rule

Rule 13.3(a), (b)(i), (d) and Interpretation and Policy .01 Forwarding of FINRA Rule 2251 Processing and Forwarding of Proxy and Other Proxy and Other Issuer-Related Materials. Issuer-Related Materials. 1 FINRA shall not have Regulatory Responsibilities regarding .01 of MEMX Rule 3.6. 2 FINRA shall not have Regulatory Responsibilities regarding requirements to keep records ‘‘in conformity with . . . Exchange Rules;’’ respon- sibility for such requirement remains with MEMX. In addition, the following provisions shall be part of this 17d–2 Agreement: SEA Rules: • SEA Rule 200 of Regulation SHO—Definition of Short Sales and Marking Requirements ** • SEA Rule 201 of Regulation SHO—Circuit Breaker ** • SEA Rule 203 of Regulation SHO—Borrowing and Delivery Requirements ** • SEA Rule 204 of Regulation SHO—Close-Out Requirement ** • SEA Rule 101 of Regulation M—Activities by Distribution Participants ** • SEA Rule 102 of Regulation M—Activities by Issuers and Selling Security Holders During a Distribution ** • SEA Rule 103 of Regulation M—Nasdaq Passive Market Making ** • SEA Rule 104 of Regulation M—Stabilizing and Other Activities in Connection with an Offering ** • SEA Rule 105 of Regulation M—Short Selling in Connection With a Public Offering ** • SEA Rule 604 of Regulation NMS—Display of Customer Limit Orders ** • SEA Rule 606 of Regulation NMS—Disclosure of Routing Information ** • SEA Rule 610(d) of Regulation NMS—Locking or Crossing Quotations ** • SEA Rule 611 of Regulation NMS—Order Protection Rule ** • SEA Rule 10b–5 Employment of Manipulative and Deceptive Devices ∧ • SEA Rule 17a–3/17a–4—Records to Be Made by Certain Exchange Members, Brokers, and Dealers/Records to Be Preserved by Certain Exchange Members, Brokers, and Dealers ∧ ∧ FINRA shall not have any Regulatory Responsibilities for these rules as they pertain to violations of insider trading activities, which is covered by a separate 17d–2 Agreement by and among Cboe BZX Exchange, Inc., Cboe BYX Exchange, Inc., Chicago Stock Exchange, Inc., Cboe EDGA Exchange Inc., Cboe EDGX Exchange Inc., Financial Industry Regulatory Authority, Inc., Nasdaq BX, Inc., Nasdaq PHLX LLC, The Nasdaq Stock Market LLC, NYSE National, Inc., New York Stock Exchange, LLC, NYSE American LLC, NYSE Arca Inc., and Investors’ Ex- change LLC and the Long-Term Stock Exchange, Inc. effective August 1, 2019, as may be amended from time to time. ** FINRA shall perform the surveillance responsibilities for the double star rules. These rules may be cited by FINRA in both the context of this Agreement and the Regulatory Services Agreement.

III. Date of Effectiveness of the Electronic Comments plan also will be available for inspection Proposed Plan and Timing for • Use the Commission’s internet and copying at the principal offices of Commission Action comment form (http://www.sec.gov/ MEMX and FINRA. All comments received will be posted without change. rules/other.shtml); or Pursuant to Section 17(d)(1) of the Persons submitting comments are • Send an email to rule-comments@ Act 14 and Rule 17d–2 thereunder,15 cautioned that we do not redact or edit sec.gov. Please include File Number 4– after June 11, 2020, the Commission personal identifying information from 762 on the subject line. may, by written notice, declare the plan comment submissions. You should submitted by MEMX and FINRA, File Paper Comments submit only information that you wish No. 4–762, to be effective if the • Send paper comments in triplicate to make available publicly. All submissions should refer to File Commission finds that the plan is to Secretary, Securities and Exchange Number 4–762 and should be submitted necessary or appropriate in the public Commission, Station Place, 100 F Street on or before June 11, 2020. interest and for the protection of NE, Washington, DC 20549–1090. investors, to foster cooperation and All submissions should refer to File For the Commission, by the Division of coordination among self-regulatory Trading and Markets, pursuant to delegated Number 4–762. This file number should authority.16 organizations, or to remove be included on the subject line if email J. Matthew DeLesDernier, impediments to and foster the is used. To help the Commission Assistant Secretary. development of the national market process and review your comments system and a national system for the more efficiently, please use only one [FR Doc. 2020–11283 Filed 5–26–20; 8:45 am] clearance and settlement of securities method. The Commission will post all BILLING CODE 8011–01–P transactions and in conformity with the comments on the Commission’s internet factors set forth in Section 17(d) of the website (http://www.sec.gov/rules/ SECURITIES AND EXCHANGE Act. other.shtml). Copies of the submission, COMMISSION all subsequent amendments, all written IV. Solicitation of Comments statements with respect to the proposed Sunshine Act Meetings In order to assist the Commission in rule change that are filed with the determining whether to approve the Commission, and all written TIME AND DATE: Notice is hereby given, proposed 17d–2 Plan and to relieve communications relating to the pursuant to the provisions of the MEMX of the responsibilities which proposed rule change between the Government in the Sunshine Act, Public Law 94–409, that the Securities and would be assigned to FINRA, interested Commission and any person, other than those that may be withheld from the Exchange Commission Fixed Income persons are invited to submit written public in accordance with the Market Structure Advisory Committee data, views, and arguments concerning provisions of 5 U.S.C. 552, will be will hold a public meeting on June 1, the foregoing. Comments may be available for website viewing and 2020, at 9:30 a.m. (ET). submitted by any of the following printing in the Commission’s Public PLACE: The meeting will be conducted methods: Reference Room, 100 F Street NE, by remote means. Members of the public Washington, DC 20549 on official may watch the webcast of the meeting 14 15 U.S.C. 78q(d)(1). business days between the hours of 15 17 CFR 240.17d–2. 10:00 a.m. and 3:00 p.m. Copies of the 16 17 CFR 200.30–3(a)(34).

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on the Commission’s website at SUPPLEMENTARY INFORMATION: The notice DEPARTMENT OF STATE www.sec.gov. of the President’s major disaster [Public Notice: 11127] STATUS: The meeting will begin at 9:30 declaration for the State of OREGON, a.m. and will be open to the public via dated 04/03/2020, is hereby amended to Certification Pursuant to Sections webcast. The Sunshine Act notice is extend the deadline for filing 7045(a)(1)(B) and 7045(a)(2)(A) of the being issued because a majority of the applications for physical damages as a Department of State, Foreign Commission may attend the meeting. result of this disaster to 07/02/2020. Operations, and Related Programs MATTERS TO BE CONSIDERED: On May 8, All other information in the original Appropriations Act, 2020 2020, the Commission issued notice of declaration remains unchanged. the Committee meeting (Release No. 34– (Catalog of Federal Domestic Assistance Pursuant to section 7045(a)(1)(B) and 88842), indicating that the meeting is Number 59008) section 7045(a)(2)(A) of the Department open to the public and inviting the of State, Foreign Operations, and Cynthia Pitts, public to submit written comments to Related Programs Appropriations Act, the Committee. Acting Associate Administrator for Disaster 2020 (Div. G, Pub. L. 116–94) and The agenda for the meeting will Assistance. Delegation of Authority 245–2, I hereby include panel discussions and potential [FR Doc. 2020–11308 Filed 5–26–20; 8:45 am] certify that the central government of El recommendations from the BILLING CODE 8026–03–P Salvador is: subcommittees, including potential (a) Combating corruption and recommendations concerning internal impunity, including prosecuting corrupt fund crosses and credit ratings, as well DEPARTMENT OF STATE government officials; (b) Implementing reforms, policies, as a panel discussing the role of bond [Public Notice: 11126] pricing services. and programs to increase transparency CONTACT PERSON FOR MORE INFORMATION: Certification Pursuant To Section 6(a) and strengthen public institutions; For further information, please contact Of the Nicaragua Human Rights and (c) Protecting the rights of civil Vanessa A. Countryman from the Office Anticorruption Act Of 2018 society, opposition political parties, and of the Secretary at (202) 551–5400. the independence of the media; By virtue of the authority vested in (d) Providing effective and Dated: May 21, 2020. me as the Deputy Secretary of State, and accountable law enforcement and Vanessa A. Countryman, pursuant to section 6(a) of the Nicaragua security for its citizens, and upholding Secretary. Human Rights and Anticorruption Act due process of law; [FR Doc. 2020–11411 Filed 5–22–20; 11:15 am] of 2018 (Pub. L. 115–335) and (e) Implementing policies to reduce BILLING CODE 8011–01–P Department of State Delegation of poverty and promote equitable Authority 245–2, I hereby certify that economic growth and opportunity; the Government of Nicaragua is not (f) Supporting the independence of SMALL BUSINESS ADMINISTRATION taking effective steps to: the judiciary and of electoral (a) Strengthen the rule of law and [Disaster Declaration #16412 and #16413; institutions; Oregon Disaster Number OR–00100] democratic governance, including the (g) Improving border security; independence of the judicial system and (h) Combating human smuggling and Presidential Declaration Amendment of electoral council; trafficking and countering the activities a Major Disaster for the State of (b) Combat corruption, including by of criminal gangs, drug traffickers, and Oregon investigating and prosecuting cases of transnational criminal organizations; public corruption; and AGENCY: U.S. Small Business (c) Protect civil and political rights, (i) Informing its citizens of the Administration. including the rights of freedom of the dangers of the journey to the southwest ACTION: Amendment 1. press, speech, and association, for all border of the United States. people of Nicaragua, including political SUMMARY: This is an amendment of the This certification shall be published opposition parties, journalists, trade Presidential declaration of a major in the Federal Register and, along with unionists, human rights defenders, disaster for the State of OREGON the accompanying Memorandum of indigenous peoples, and other civil (FEMA–4519–DR), dated 04/03/2020. Justification, shall be reported to society activists; Incident: Severe Storms, Flooding, Congress. (d) Investigate and hold accountable Landslides, and Mudslides. officials of the Government of Nicaragua Dated May 14, 2020. Incident Period: 02/05/2020 through Stephen E. Biegun, 02/09/2020. and other persons responsible for the killings of individuals associated with Deputy Secretary of State. DATES: Issued on 05/14/2020. the protests in Nicaragua that began on [FR Doc. 2020–11379 Filed 5–22–20; 4:15 pm] Physical Loan Application Deadline April 18, 2018; or to BILLING CODE 4710–29–P Date: 07/02/2020. Economic Injury (EIDL) Loan (e) Hold free and fair elections Application Deadline Date: 01/04/2021. overseen by credible domestic and international observers. DEPARTMENT OF STATE ADDRESSES: Submit completed loan This determination shall be published [Public Notice: 11124] applications to: U.S. Small Business in the Federal Register and, along with Administration, Processing and the accompanying report, shall be Certification Pursuant to Sections Disbursement Center, 14925 Kingsport submitted to Congress. 70454(a)(1)(B) and 7045(a)(2)(A) of the Road, Fort Worth, TX 76155. Dated May 12, 2020. Department of State, Foreign FOR FURTHER INFORMATION CONTACT: A. Stephen E. Biegun, Operations, and Related Programs Escobar, Office of Disaster Assistance, Appropriations Act, 2020 U.S. Small Business Administration, Deputy Secretary of State. 409 3rd Street SW, Suite 6050, [FR Doc. 2020–11380 Filed 5–22–20; 4:15 pm] Pursuant to section 7045(a)(1)(B) and Washington, DC 20416, (202) 205–6734. BILLING CODE 4710–29–P section 7045(a)(2)(A) of the Department

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of State, Foreign Operations, and (c) Protecting the rights of civil FOR FURTHER INFORMATION CONTACT: Related Programs Appropriations Act, society, opposition political parties, and USTR Associate General Counsel Megan 2020 (Div. G, Pub. L. 116–94) and the independence of the media; Grimball at (202) 395–5725. Delegation of Authority 245–2, I hereby (d) Providing effective and SUPPLEMENTARY INFORMATION: certify that the central government of accountable law enforcement and Guatemala is: security for its citizens, and upholding A. Comments (a) Combating corruption and due process of law; Submit written comments and impunity, including prosecuting corrupt (e) Implementing policies to reduce suggestions to OMB addressing one or government officials; poverty and promote equitable more of the following four points: (b) Implementing reforms, policies, economic growth and opportunity; (1) Whether the ICR is necessary for (f) Supporting the independence of and programs to increase transparency the proper performance of USTR’s the judiciary and of electoral and strengthen public institutions; functions, including whether the institutions; (c) Protecting the rights of civil information will have practical utility. society, opposition political parties, and (g) Improving border security; (h) Combating human smuggling and (2) The accuracy of USTR’s estimate the independence of the media; of the burden of the ICR, including the (d) Providing effective and trafficking and countering the activities of criminal gangs, drug traffickers, and validity of the methodology and accountable law enforcement and assumptions used. security for its citizens, and upholding transnational criminal organizations; and (3) Ways to enhance the quality, due process of law; (i) Informing its citizens of the utility, and clarity of the ICR. (e) Implementing policies to reduce dangers of the journey to the southwest (4) Ways to minimize the burden of poverty and promote equitable border of the United States. the ICR on those who are to respond, economic growth and opportunity; This certification shall be published including through the use of appropriate (f) Supporting the independence of in the Federal Register and, along with automated, electronic, mechanical, or the judiciary and of electoral the accompanying Memorandum of other technological collection institutions; Justification, shall be reported to techniques or other forms of information (g) Improving border security; Congress. technology. (h) Combating human smuggling and trafficking and countering the activities Dated May 7, 2020. B. Overview of This Information of criminal gangs, drug traffickers, and Stephen E. Biegun, Collection transnational criminal organizations; Deputy Secretary of State. Title: Large Civil Aircraft Dispute and [FR Doc. 2020–11382 Filed 5–22–20; 4:15 pm] Portal. (i) Informing its citizens of the BILLING CODE 4710–29–P OMB Control Number: N/A. dangers of the journey to the southwest Form Number(s): Large Civil Aircraft border of the United States. Dispute (LCA) Form. This certification shall be published OFFICE OF THE UNITED STATES Description: Following an in the Federal Register and, along with TRADE REPRESENTATIVE investigation, and nearly 15 years of the accompanying Memorandum of litigation, the U.S. Trade Representative Request for the Office of Management Justification, shall be reported to determined that the European Union and Budget To Provide Emergency Congress. (EU) and certain member States or Clearance of a New Collection of Dated: May 14, 2020. former member States denied U.S. rights Information Titled ‘Large Civil Aircraft under the World Trade Organization Stephen E. Biegun, Dispute Portal’ Deputy Secretary of State. (WTO) Agreement and failed to [FR Doc. 2020–11383 Filed 5–22–20; 4:15 pm] AGENCY: Office of the United States implement WTO Dispute Settlement BILLING CODE 4710–29–P Trade Representative. Body recommendations concerning ACTION: Notice of a request for certain subsidies to the EU large civil emergency clearance of an information aircraft industry. Pursuant to sections DEPARTMENT OF STATE collection and a request for comments. 301(a), 301(c), 304(a)(1)(B), and 306(b) of the Trade Act of 1974 (Trade Act) (19 [Public Notice:11125] SUMMARY: The Office of the United U.S.C. 2411(a), 2411(c), 2414(a)(1)(B), States Trade Representative (USTR) is and 2416(b)), the U.S. Trade Certification Pursuant to Section submitting a request to the Office of 7045(a)(2)(A) of the Department Of Representative determined to take Management and Budget (OMB) for action in the form of additional duties State, Foreign Operations, and Related emergency review and clearance of a Programs Appropriations Act, 2020 on products of certain EU member new information collection request States, at levels of 10 or 25 percent ad Pursuant to section 7045(a)(1)(B) and (ICR) titled Large Civil Aircraft Dispute valorem, as specified in the list of section 7045(a)(2)(A) of the Department Portal under the Paperwork Reduction products included in Annex A of the of State, Foreign Operations, and Act of 1995 (PRA) and its implementing October 9 notice, effective October 18, Related Programs Appropriations Act, regulations. 2019 (retaliation list). See 84 FR 54245 2020 (Div. G, Pub. L. 116–94), per DATES: Submit comments no later than (October 9, 2019). delegation of authority 245–2, I hereby June 9, 2020. You can find background on the certify that the central government of ADDRESSES: Submit comments about the proceedings in this investigation in Honduras is: ICR, including the title Large Civil prior notices including 84 FR 15028 (a) Combating corruption and Aircraft Dispute Portal, to (April 12, 2019), 84 FR 32248 (July 5, impunity, including prosecuting corrupt www.reginfo.gov/public/do/PRAMain. 2019), 84 FR 54245 (October 9, 2019), 84 government officials; Find this ICR by selecting ‘Currently FR 55998 (October 18, 2019), 84 FR (b) Implementing reforms, policies, under Review—Open for Public 67992 (December 12, 2019), 85 FR and programs to increase transparency Comments’ or by using the search 10204 (February 21, 2020), and 85 FR and strengthen public institutions; function. 14517 (March 12, 2020).

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Section 306(b)(2)(B) of the Trade Act Unless certain statutory conditions regarding whether a particular product requires the U.S. Trade Representative are met, the next 180-day revision is should be subject to additional duties to revise the retaliation list unless required on or about August 12, 2020. will take approximately 120 minutes certain conditions are met. Under USTR anticipates receiving at least as and will cost about $200 per section 306(c), the U.S. Trade many public comments as it received in submission. The burden estimate Representative must make revisions 120 response to the initial 120-day review. includes all costs to prepare and submit days after he took action, and every 180 To assist in timely and comprehensive a comment. The total time burden for days thereafter unless certain conditions review and public availability of comments is 50,000 hours, and the are met. Before making revisions, comments in response to notices of estimated total cost is $5,000,000. periodic revisions, USTR is establishing section 306(d) requires the U.S Trade Status: Emergency review. Pursuant the Large Civil Aircraft Dispute Portal Representative to seek public to 5 CFR 1320.13, USTR is requesting and requiring use of the LCA Form comments. emergency processing for this ICR attached to this notice. In compliance The U.S. Trade Representative because it cannot reasonably comply announced the beginning of the 120-day with statutory requirements, USTR anticipates that it will begin accepting with normal clearance procedures. review of the action on December 12, USTR carefully evaluated the cost and 2019. See 84 FR 67992 (December 12 comments regarding the next possible revision around June 23, 2020. USTR complexity of establishing its own notice). The December 12 notice portal to receive and evaluate public specifically requested public comments will ask the public to provide comments on the same issues described in the comments based on the level of public on: interest in response to the first revision • Whether the U.S. Trade December 12 notice. Affected Public: Those interested in notice, the difficulties in processing the Representative should remove products comments using Regulations.gov, and of specific EU member States from the commenting on whether certain products of EU member States (or USTR’s experience in handling a large list of products subject to additional volume of public input in connection duties or should remain on the list. former member States) classified in certain enumerated subheadings of the with the Section 301 Portal. USTR made • if a product remains on the list, Harmonized Tariff Schedule of the the determination to move forward with whether the U.S. Trade Representative United States should be subject to the Large Civil Aircraft Dispute Portal as increase the current rate of additional additional duties of up to 100 percent. quickly as possible in advance of the duty to as high as 100 percent. expected next revision round. To meet • Frequency of Submission: One whether the U.S. Trade submission per periodic revision notice. the statutory schedule for revisions, Representative should add additional Respondent Universe: Same as USTR must open the Large Civil Aircraft EU products to the list. USTR received ‘Affected Public.’ Dispute Portal on or about June 23, nearly 26,000 comments in response to Reporting Burden: 2020. Upon OMB approval of this the December 12 notice. The U.S. Trade Total Estimated Responses: 25,000 emergency clearance request, USTR will Representative announced certain comments in response to each periodic follow the normal clearance procedures revisions to the action being taken in the revision notice. for the ICR. investigation on February 14, 2020. See Total Estimated Annual Burden: 85 FR 10204 (February 21, 2020), and 85 USTR estimates that the average time to Janice Kaye, FR 14517 (March 12, 2020). prepare and submit a comment Chief Counsel for Administrative Law.

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[FR Doc. 2020–11430 Filed 5–22–20; 4:15 pm] www.faa.gov/space/additional_ link posted above. The U.S. Department BILLING CODE 3290–F0–P information/comstac/. of Transportation is committed to FOR FURTHER INFORMATION CONTACT: providing equal access to this meeting James Hatt, Designated Federal Officer, for all participants. If you need DEPARTMENT OF TRANSPORTATION U.S. Department of Transportation, at alternative formats or services because [email protected]. Any committee of a disability, such as sign language, Federal Aviation Administration related request should be sent to the interpretation, or other ancillary aids, person listed in this section. please contact the person listed in the Commercial Space Transportation SUPPLEMENTAL INFORMATION: FOR FURTHER INFORMATION CONTACT Advisory Committee: Notice of Public Meeting I. Background section by June 15, 2020. There will be approximately thirty AGENCY: Federal Aviation The Commercial Space Transportation Advisory Committee was minutes allotted for oral comments from Administration, Department of members of the public joining a Transportation. created under the Federal Advisory COMSTAC meeting. To accommodate as ACTION: Notice of Public Meeting. Committee Act (FACA), in accordance with Public Law 92–463. Since its many speakers as possible, the time for SUMMARY: This notice announces a inception, COMSTAC has provided each commenter may be limited. meeting of the Commercial Space information, advice, and Individuals wishing to reserve speaking Transportation Advisory Committee for recommendations to the U.S. time during the meeting must submit a June 22, 2020. Department of Transportation through request at the time of registration, as DATES: The June 22, 2020 meeting will FAA regarding technology, business, well as the name, address, and be held from 8:45 a.m. to 12:00 p.m. and policy issues relevant to oversight organizational affiliation of the Eastern Time. Requests for of the U.S. commercial space proposed speaker. If the number of accommodations to a disability must be transportation sector. registrants requesting to make received by June 15, 2020. II. Agenda statements is greater than can be Requests to speak during the meeting reasonably accommodated during the must be submitted by June 15, 2020, to At the June 22, 2020 meeting, the meeting, the FAA Office of Commercial DOT and include a written copy of their agenda will cover the following topics: Space Transportation may conduct a remarks. Requests to submit written Secretary of Transportation Elaine Chao lottery to determine the speakers. Welcome Remarks materials to be reviewed during the Speakers are requested to submit a FAA Administrator Steve Dickson meeting must be received by DOT no written copy of their prepared remarks Welcome Remarks later than June 15, 2020. for inclusion in the meeting records and Notices for the September 2020 and FAA Associate Administrator for Commercial Space Transportation, for circulation to COMSTAC members. March 2021 meetings will be published All prepared remarks submitted on time in the Federal Register at least 15 Gen. Wayne Monteith Welcome will be accepted and considered as part calendar days before the day of the Remarks of the record. Any member of the public meeting. Committee Member Introductions FAA/AST Updates may present a written statement to the ADDRESSES: The June 15, 2020 meeting AST’s Priorities for 2020–2021 committee at any time. will be an internet-only meeting. No Public Comments/Other Business physical meeting is planned. Instructions on how to attend the III. Public Participation meeting, copies of meeting minutes, and The June 22, 2020 meeting is open to a detailed agenda will be posted on the the public. The meeting can be viewed COMSTAC internet website at: https:// by the public using the internet website

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Issued in Washington, DC, this 21 day of described in the system of records Company (BNSF) petitioned the Federal May 2020. notice (DOT/ALL–14 FDMS), which can Railroad Administration (FRA) for a James A. Hatt, be reviewed at http://www.dot.gov/ waiver of compliance from certain Designated Federal Officer, Commercial privacy. provisions of the Federal railroad safety Space Transportation Advisory Committee, Docket: Background documents or regulations contained at 49 CFR part Federal Aviation Administration, Department comments received may be read at 215, Railroad Freight Car Safety of Transportation. http://www.regulations.gov at any time. Standards, and part 232, Brake System [FR Doc. 2020–11323 Filed 5–26–20; 8:45 am] Follow the online instructions for Safety Standards For Freight And Other BILLING CODE 4910–13–P accessing the docket or go to the Docket Non-Passenger Trains And Equipment; Operations in Room W12–140 of the End-Of-Train Devices. FRA assigned the West Building Ground Floor at 1200 petition Docket Number FRA–2020– DEPARTMENT OF TRANSPORTATION New Jersey Avenue SE, Washington, 0033. DC, between 9 a.m. and 5 p.m., Monday Federal Aviation Administration Specifically, BNSF requests relief through Friday, except Federal holidays. from 49 CFR 215.13, Pre-departure [Summary Notice No. PE–2020–31] FOR FURTHER INFORMATION CONTACT: inspection, which requires an Deana Stedman, AIR–673, Federal inspection when combining two Petition for Exemption; Summary of Aviation Administration, 2200 South separate consists including one or more Petition Received; Airlines for America 216th Street, Des Moines, WA 98198, cars and one or more locomotives that AGENCY: Federal Aviation phone and fax 206–231–3187, email have been properly inspected and tested Administration (FAA), DOT. [email protected]. in compliance with all applicable ACTION: Notice of petition for exemption This notice is published pursuant to regulations, meaning that both consists received. 14 CFR 11.85. have had a Class I brake test (§ 232.205), Class IA brake test (§ 232.207), or have Issued in Des Moines, Washington, on May SUMMARY: This notice contains a 20, 2020. been designated as extended haul trains and are compliant with all requirements summary of a petition seeking relief James E. Wilborn, from specified requirements of the of § 232.213. BNSF states that the Acting Manager, Transport Standards requested relief will allow combining Federal Aviation Regulations. The Branch. purpose of this notice is to improve the two existing and operating trains public’s awareness of, and participation Petition for Exemption without additional inspections, besides in, the FAA’s exemption process. Docket No.: FAA–2020–0492. a Class III brake test. It further states that Neither publication of this notice nor Petitioner: Airlines for America. the relief will allow subsequent the inclusion or omission of information Sections of 14 CFR Affected: separation of two trains without in the summary are intended to affect §§ 91.9(a) and (b), 121.153(a), additional inspections, besides a Class the legal status of the petition or its final 121.337(b)(9)(iii). III brake test, provided that a record of disposition. Description of Relief Sought: Airlines the original consist remains intact. DATES: Comments on this petition must for America petitions for relief from 14 In support of its petition, BNSF states identify the petition docket number and CFR 91.9(a) and (b), 121.153(a), and that trains to be combined will include must be received on or before June 3, 121.337(b)(9)(iii) to allow its member both trains operating with head-end 2024. airlines to transport cargo, subject to the locomotives and trains operating with locomotives equipped with LOCOTROL ADDRESSES: Send comments identified FAA’s conditions, on the floor of the by docket number FAA–2020–0492 main deck of transport category or Radio Controlled Distributed Power using any of the following methods: airplanes without revenue passengers Technology (DP), which was developed • Federal eRulemaking Portal: Go to onboard. COVID–19 has dramatically by GE Transportation Systems. DP http://www.regulations.gov and follow reduced the demand for commercial air technology allows locomotives to be the online instructions for sending your travel. Due to this extreme reduction in placed strategically in a train and comments electronically. demand, passenger carriers now have controlled remotely by a leading • Mail: Send comments to Docket the capacity to carry cargo, including locomotive at the head of the train. Operations, M–30; U.S. Department of critical medical cargo, in-cabin. The Once trains are combined, BNSF will Transportation (DOT), 1200 New Jersey relief that would be provided by this operate the combined train as a DP train Avenue SE, Room W12–140, West exemption would also support the need (if it is longer than 10,000 feet) until the Building Ground Floor, Washington, DC to replace the cargo capacity provided train is separated or reaches its 20590–0001. on airplanes normally flown by destination. The combined train will be • Hand Delivery or Courier: Take passenger carriers. allowed one pick-up and/or set-out with the inclusion of the separating event, comments to Docket Operations in [FR Doc. 2020–11288 Filed 5–26–20; 8:45 am] and the air slips for both trains that Room W12–140 of the West Building BILLING CODE 4910–13–P Ground Floor at 1200 New Jersey were combined will be maintained from Avenue SE, Washington, DC, between 9 the point of combining through the a.m. and 5 p.m., Monday through DEPARTMENT OF TRANSPORTATION duration of the trip. Friday, except Federal holidays. BNSF explains that an additional • Fax: Fax comments to Docket Federal Railroad Administration inspection when combining trains is Operations at 202–493–2251. redundant because each train to be Privacy: In accordance with 5 U.S.C. [Docket Number FRA–2020–0033] combined has had a brake test and 553(c), DOT solicits comments from the Petition for Waiver of Compliance inspection and a § 215.13 pre-departure public to better inform its rulemaking inspection. Further, BNSF states that the process. DOT posts these comments, Under part 211 of title 49 Code of combined train will continue to receive without edit, including any personal Federal Regulations (CFR), this designated inspection(s) as required or information the commenter provides, to document provides the public notice pre-designated prior to the combining http://www.regulations.gov, as that on April 17, 2020, BNSF Railway event and that no cars will exceed the

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brake test mileage for which they were final action is taken. Comments received FOR FURTHER INFORMATION CONTACT: originally inspected. after that date will be considered if Mike Yarrington, 202–366–1915, BNSF states that the requested relief practicable. Director, Office of Marine Insurance, will reduce exposure to potential Anyone can search the electronic Maritime Administration, U.S. hazards faced by train crews or form of any written communications Department of Transportation, 1200 mechanical inspectors when walking and comments received into any of our New Jersey Avenue SE, Washington, DC both sides of a pre-tested train being dockets by the name of the individual 20590. combined. It also contends that the submitting the comment (or signing the relief will encourage greater utilization document, if submitted on behalf of an SUPPLEMENTARY INFORMATION: of trains under DP configuration across association, business, labor union, etc.). Title: Approval of Underwriters of its network, which may improve Under 5 U.S.C. 553(c), DOT solicits Marine Hull Insurance. engineers’ ability to control in train comments from the public to better OMB Control Number: 2133–0517. forces and improves overall braking inform its processes. DOT posts these characteristics by having multiple comments, without edit, including any Type of Request: Renewal of a locations within a train with cut-in personal information the commenter Previously Approved Information brake valves. This allows brake pipe provides, to www.regulations.gov, as Collection. reductions to occur simultaneously at described in the system of records Background: This collection of multiple points within a train notice (DOT/ALL–14 FDMS), which can information involves the approval of promoting smoother brake applications be reviewed at https:// marine hull underwriters to insure and keeping in train forces at a www.transportation.gov/privacy. See MARAD program vessels. Applicants minimum. These benefits are also also https://www.regulations.gov/ will be required to submit financial data gained with an emergency brake privacyNotice for the privacy notice of upon which MARAD approval would be application which propagates more regulations.gov. based. This information is needed in rapidly when occurring simultaneously Issued in Washington, DC. order that MARAD officials can evaluate from multiple points within the train. the underwriters and determine their A copy of the petition, as well as any John Karl Alexy, Associate Administrator for Railroad Safety suitability for providing marine hull written communications concerning the insurance on MARAD vessels. petition, is available for review online at Chief Safety Officer. www.regulations.gov and in person at [FR Doc. 2020–11338 Filed 5–26–20; 8:45 am] Respondents: Marine insurance the U.S. Department of Transportation’s BILLING CODE 4910–06–P brokers and underwriters of marine (DOT) Docket Operations Facility, 1200 insurance. New Jersey Ave. SE, W12–140, Affected Public: Business or other for DEPARTMENT OF TRANSPORTATION Washington, DC 20590. The Docket profit. Operations Facility is open from 9 a.m. Maritime Administration Total Estimated Number of to 5 p.m., Monday through Friday, Responses: 66. except Federal Holidays. [Docket No. MARAD–2020–0076] Interested parties are invited to Frequency of Collection: Annually. Request for Comments of a Previously participate in these proceedings by Estimated Time per Respondent: .05– Approved Information Collection, submitting written views, data, or 1 hr. comments. FRA does not anticipate Approval of Underwriters of Marine Total Estimated Number of Annual scheduling a public hearing in Hull Insurance Burden Hours: 49. connection with these proceedings since AGENCY: Maritime Administration, DOT. the facts do not appear to warrant a Public Comments Invited: Comments ACTION: Notice and request for hearing. If any interested parties desire are invited on: Whether the proposed comments. an opportunity for oral comment and a collection of information is necessary public hearing, they should notify FRA, SUMMARY: In compliance with the for the proper performance of the in writing, before the end of the Paperwork Reduction Act of 1995, this functions of the Department, including comment period and specify the basis notice announces that the Information whether the information will have for their request. Collection Request (ICR) abstracted practical utility; the accuracy of the All communications concerning these below is being forwarded to the Office Department’s estimate of the burden of proceedings should identify the of Management and Budget (OMB) for the proposed information collection; appropriate docket number and may be review and comments. A Federal ways to enhance the quality, utility and submitted by any of the following Register Notice with a 60-day comment clarity of the information to be methods: collected; and ways to minimize the • period soliciting comments on the Website: http:// following information collection was burden of the collection of information www.regulations.gov. Follow the online published on March 16, 2020. on respondents, including the use of instructions for submitting comments. DATES: Comments must be submitted on automated collection techniques or • Fax: 202–493–2251. other forms of information technology. • Mail: Docket Operations Facility, or before June 26, 2020. U.S. Department of Transportation, 1200 ADDRESSES: Written comments and (Authority: The Paperwork Reduction Act of New Jersey Ave. SE, W12–140, recommendations for the proposed 1995; 44 U.S.C. Chapter 35, as amended; and Washington, DC 20590. information collection should be sent 49 CFR 1.93) • Hand Delivery: 1200 New Jersey within 30 days of publication of this Dated: May 21, 2020. Ave. SE, Room W12–140, Washington, notice to www.reginfo.gov/public/do/ By Order of the Maritime Administrator. DC 20590, between 9 a.m. and 5 p.m., PRAMain. Find this particular T. Mitchell Hudson, Jr., Monday through Friday, except Federal information collection by selecting Holidays. ‘‘Currently under 30-day Review—Open Secretary, Maritime Administration. Communications received by June 26, for Public Comments’’ or by using the [FR Doc. 2020–11310 Filed 5–26–20; 8:45 am] 2020 will be considered by FRA before search function. BILLING CODE 4910–81–P

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DEPARTMENT OF THE TREASURY Estimated Total Annual Burden The collection of information through Hours: 42,220. the Behavioral Laboratory is necessary Agency Information Collection 2. Title: Requirements for qualified to enable the Agency to garner customer Activities; Submission for OMB domestic trust. and stakeholder feedback in an efficient, Review; Comment Request; Multiple OMB Control Number: 1545–1443. timely manner, in accordance with the Internal Revenue Service Information Type of Review: Extension without commitment to improving taxpayer Collection Requests change of a currently approved service delivery. Improving agency collection. programs requires ongoing assessment AGENCY: Departmental Offices, U.S. Description: The regulation provides Department of the Treasury. of service delivery. WISS, through the guidance relating to the additional Behavioral Laboratory, will collect, ACTION: Notice. requirements necessary to ensure the analyze, and interpret information collection of the estate tax imposed SUMMARY: The Department of the gathered through this generic clearance under Section 2056A(b) with respect to to identify strengths and weaknesses of Treasury will submit the following taxable events involving qualified information collection requests to the current services and make domestic trusts (QDOT’S). In order to improvements in service delivery based Office of Management and Budget ensure collection of the tax, the (OMB) for review and clearance in on feedback provided by taxpayers and regulation provides various security IRS employees. accordance with the Paperwork options that may be selected by the trust Form: None. Reduction Act of 1995, on or after the and the requirements associated with Affected Public: Business or other for- date of publication of this notice. The each option. In addition, under certain profit organizations and individuals or public is invited to submit comments on circumstances the trust is required to households. these requests. file an annual statement with the IRS DATES: Comments should be received on disclosing the assets held by the trust. Estimated Number of Respondents: or before June 26, 2020 to be assured of Form: None. 150,000. consideration. Affected Public: Individuals or Frequency of Response: On occasion. Estimated Total Number of Annual ADDRESSES: Written comments and Households. recommendations for the proposed Estimated Number of Respondents: Responses: 150,000. information collection should be sent 4,390. Estimated Time per Response: 1 hour. within 30 days of publication of this Frequency of Response: On occasion. Estimated Total Annual Burden notice to www.reginfo.gov/public/do/ Estimated Total Number of Annual Hours: 150,000 hours. Responses: 4,390. PRAMain. Find this particular (Authority: 44 U.S.C. 3501 et seq.) Estimated Time per Response: 1 hour, information collection by selecting 23 minutes. Dated: May 21, 2020. ‘‘Currently under 30-day Review—Open Estimated Total Annual Burden Spencer W. Clark, for Public Comments’’ or by using the Hours: 6,070 hours. Treasury PRA Clearance Officer. search function. 3. Title: Wage and Investment [FR Doc. 2020–11349 Filed 5–26–20; 8:45 am] FOR FURTHER INFORMATION CONTACT: Strategies and Solutions Behavioral BILLING CODE 4830–01–P Copies of the submissions may be Laboratory Customer Surveys and obtained from Molly Stasko by emailing Support. [email protected], calling (202) 622– OMB Control Number: 1545–2274. DEPARTMENT OF THE TREASURY 8922, or viewing the entire information Type of Review: Extension without collection request at www.reginfo.gov. change of a currently approved United States Mint SUPPLEMENTARY INFORMATION: collection. Description: As outlined in the IRS Request for Citizens Coinage Advisory Internal Revenue Service (IRS) Strategic Plan, the Agency is working Committee Membership Applications 1. Title: Application To Use Last In, towards allocating IRS resources First Out (LIFO) Inventory Method. strategically to address the evolving ACTION: Notice; request for membership OMB Control Number: 1545–0042. scope and increasing complexity of tax applications. Type of Review: Extension without administration. In order to do this, the change of a currently approved IRS must realize their operational Pursuant to United States Code, Title collection. efficiencies and effectively manage costs 31, section 5135(b), the United States Description: Form 970 is filed by by improving enterprise-wide resource Mint is accepting applications for individuals, partnerships, trusts, estates, allocation and streamlining processes appointment to the Citizens Coinage or corporations to elect to use the LIFO using feedback from various behavioral Advisory Committee (CCAC) as a inventory method or to extend the LIFO research techniques. member representing the interests of the method to additional goods. The To assist the Agency in accomplishing general public in the coinage of the Internal Revenue Service uses Form 970 the goal outlined in the Strategic Plan, United States. The CCAC was to determine if the election was the Wage and Investment Division established to: properly made. continuously maintains a ‘‘customer- D Advise the Secretary of the Treasury Form: Form 970. first’’ focus through routinely soliciting on any theme or design proposals Affected Public: Business or other for- information concerning the needs and relating to circulating coinage, bullion profit organizations, and individuals or characteristics of its customers and coinage, Congressional Gold Medals, households. implementing programs based on the and national and other medals produced Estimated Number of Respondents: information received. W&I Strategies by the United States Mint. 2,000. and Solutions (WISS), is developing the D Advise the Secretary of the Treasury Frequency of Response: On occasion. implementation of a Behavioral with regard to the events, persons, or Estimated Total Number of Annual Laboratory to identify, plan and deliver places that the CCAC recommends to be Responses: 2,000. business improvement processes that commemorated by the issuance of Estimated Time per Response: 21 support fulfillment of the IRS strategic commemorative coins in each of the five hours, 6 minutes. goals. calendar years succeeding the year in

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which a commemorative coin understanding of the role of the CCAC Medal, the Secretary Mnuchin Secretary designation is made. and the obligations of a Special of the Treasury Medal, and the D Make recommendations with Government Employee; possess President Trump Presidential Medal. respect to the mintage level for any demonstrated leadership skills in their Interested persons should call the commemorative coin recommended. fields of expertise or discipline; possess CCAC HOTLINE at (202) 354–7502 for Total membership consists of 11 a demonstrated desire for public service the latest update on meeting time and voting members appointed by the and have a history of honorable location. Secretary of the Treasury: professional and personal conduct, as The CCAC advises the Secretary of the D One person specially qualified by well as successful standing in their Treasury on any theme or design virtue of his or her education, training, communities; and who are free of proposals relating to circulating coinage, or experience as nationally or professional, political, or financial bullion coinage, Congressional Gold internationally recognized curator in the interests that could negatively affect Medals, and national and other medals; United States of a numismatic their ability to provide impartial advice. advises the Secretary of the Treasury collection; Application Deadline: 5 p.m. (EDT), with regard to the events, persons, or D One person specially qualified by Friday, June 19, 2020. places to be commemorated by the virtue of his or her experience in the Receipt of Applications: Any member issuance of commemorative coins in medallic arts or sculpture; of the public wishing to be considered each of the five calendar years D One person specially qualified by for participation on the CCAC should succeeding the year in which a virtue of his or her education, training, submit a resume and cover letter commemorative coin designation is or experience in American history; describing his or her reasons for seeking made; and makes recommendations D One person specially qualified by and qualifications for membership, by with respect to the mintage level for any virtue of his or her education, training, email to [email protected]. The deadline to commemorative coin recommended. or experience in numismatics; email submissions is no later than 5 For members of the public interested D Three persons who can represent p.m. (EDT) on Friday, June 19, 2020. in listening in to the provided call the interests of the general public in the Because of the COVID–19 national number, this is a reminder that the coinage of the United States; and emergency, the United States Mint will public attendance is for listening D Four persons appointed by the not be accepting applications by mail. purposes only. Any member of the Secretary of the Treasury on the basis of FOR FURTHER INFORMATION CONTACT: public interested in submitting matters the recommendations by the House and for the CCAC’s consideration is invited Senate leadership. Jennifer Warren, United States Mint Members are appointed for a term of Liaison to the CCAC; jennifer.warren@ to submit them by email to info@ four years. No individual may be usmint.treas.gov or 202–354–7208. ccac.gov. appointed to the CCAC while serving as Eric Anderson, FOR FURTHER INFORMATION CONTACT: an officer or employee of the Federal Executive Secretary, United States Mint. Jennifer Warren, United States Mint Government. The individual must be a [FR Doc. 2020–11271 Filed 5–26–20; 8:45 am] Liaison to the CCAC; 801 9th Street NW, Washington, DC 20220; or call 202–354– U.S. citizen. BILLING CODE P The CCAC is subject to the direction 7208. of the Secretary of the Treasury. (Authority: 31 U.S.C. 5135(b)(8)(C)) Meetings of the CCAC are open to the DEPARTMENT OF THE TREASURY public and are held approximately four Eric Anderson, to six times per year. The United States United States Mint Executive Secretary, United States Mint. Mint is responsible for providing the [FR Doc. 2020–11278 Filed 5–26–20; 8:45 am] necessary support, technical services, Notification of Citizens Coinage BILLING CODE P and advice to the CCAC. CCAC Advisory Committee June 23, 2020, members are not paid for their time or Telephonic Public Meeting services, but, consistent with Federal DEPARTMENT OF VETERANS ACTION: Notice of meeting. Travel Regulations, members are AFFAIRS reimbursed for their travel and lodging Pursuant to United States Code, Title [OMB Control No. 2900–0003] expenses to attend meetings. Members 31, section 5135(b)(8)(C), the United are Special Government Employees and States Mint announces the Citizens Agency Information Collection Activity are subject to the Standards of Ethical Coinage Advisory Committee (CCAC) Under OMB Review: Proposed Conduct for Employees of the Executive telephonic public meeting scheduled for Information Collection (Application for Branch (5 CFR part 2653). June 23, 2020. Burial Benefits) The United States Mint will review all Date: June 23, 2020. submissions and will forward its Time: 9:00 a.m. to 4:00 p.m. EDT. AGENCY: Veterans Benefits recommendations to the Secretary of the Location: This meeting will occur via Administration, Department of Veterans Treasury for appointment consideration. teleconference. Interested members of Affairs. Candidates should include specific the public may dial in to listen to the ACTION: Notice. skills, abilities, talents, and credentials meeting at (888) 330–1716 and Access to support their applications and why Code: 1137147. SUMMARY: In compliance with the they would be an appropriate choice to Subject: Review and discussion of Paperwork Reduction Act (PRA) of represent the general public’s thoughts candidate designs for the 2021 Christa 1995, this notice announces that the on United States coinage and medals. McAuliffe Silver Dollar Commemorative Veterans Benefits Administration, The United States Mint is interested in Coin; new reverse designs for the Department of Veterans Affairs, will candidates who, in addition to their American Eagle Gold and American submit the collection of information general interest in numismatics, have a Eagle Silver Coins; and candidate abstracted below to the Office of demonstrated interest and commitment designs for the Larry Doby Management and Budget (OMB) for to actively participate in meetings and Congressional Gold Medal, the 2021 review and comment. The PRA activities, and a demonstrated United States Marine Corps Silver submission describes the nature of the

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information collection and its expected benefits and services established by law made; however, decision was made to cost and burden and it includes the for veterans, service personnel, and continue usage with changes. actual data collection instrument. their dependents and/or beneficiaries. Affected Public: Individuals or DATES: Written comments and Information is requested by this form households. recommendations for the proposed under the authority of 38 U.S.C. Chapter Estimated Annual Burden: 1,037.50 information collection should be sent 23 ‘‘Burial Benefits,’’ including 38 hours. U.S.C. 2302, 2303, 2304, 2307, and within 30 days of publication of this Estimated Average Burden per notice to www.reginfo.gov/public/do/ 2308. VA uses the information provided on the form to evaluate the respondent’s Respondent: 30 minutes (0.50 hours). PRAMain. Find this particular Frequency of Response: One time. information collection by selecting eligibility for monetary burial benefits, ‘‘Currently under 30-day Review—Open including the burial allowance, plot or Estimated Number of Respondents: for Public Comments’’ or by using the internment allowance, and 2,075. * search function. Refer to ‘‘OMB Control transportation reimbursement. *This total was derived from a query An agency may not conduct or No. 2900–0003.’’ of our claims database and represents sponsor, and a person is not required to the actual number of each form received SUPPLEMENTARY INFORMATION: respond to a collection of information in on an average year. Title: Application for Burial Benefits unless it displays a currently valid OMB (Under 38 U.S.C. Chapter 23), VA Form control number. The Federal Register Authority: 38 U.S.C. 2302, 2303, 2304, 2307, and 2308. 21P–530EZ. Notice with a 60-day comment period OMB Control Number: 2900–0003. soliciting comments on this collection By direction of the Secretary. Type of Review: Reinstatement of a of information was published at 85 FR Danny S. Green, currently approved collection. 15039 on Monday, March 16, 2020. VA PRA Clearance Officer, Office of Quality, Abstract: The Department of Veterans Reinstatement with change is needed Performance and Risk, Department of Affairs (VA), through its Veterans because the program office was in Veterans Affairs. Benefits Administration (VBA), discussions on use of form and/or [FR Doc. 2020–11305 Filed 5–26–20; 8:45 am] administers an integrated program of change in format and no decision was BILLING CODE 8320–01–P

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Part II

Department of Commerce

National Oceanic and Atmospheric Administration Takes of Marine Mammals Incidental to Specified Activities; Taking Marine Mammals Incidental to Site Characterization Surveys Off the Coast of Massachusetts; Notice

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DEPARTMENT OF COMMERCE megabyte file size. Attachments to pertaining to the mitigation, monitoring electronic comments will be accepted in and reporting of the takings are set forth. National Oceanic and Atmospheric Microsoft Word or Excel or Adobe PDF National Environmental Policy Act Administration file formats only. All comments received are a part of the public record To comply with the National [RTID 0648–XA065] and will generally be posted online at Environmental Policy Act of 1969 Takes of Marine Mammals Incidental to https://www.fisheries.noaa.gov/permit/ (NEPA; 42 U.S.C. 4321 et seq.) and Specified Activities; Taking Marine incidental-take-authorizations-under- NOAA Administrative Order (NAO) Mammals Incidental to Site marine-mammal-protection-act without 216–6A, NMFS must review our Characterization Surveys Off the Coast change. All personal identifying proposed action (i.e., the issuance of an of Massachusetts information (e.g., name, address) incidental harassment authorization) voluntarily submitted by the commenter with respect to potential impacts on the AGENCY: National Marine Fisheries may be publicly accessible. Do not human environment. Service (NMFS), National Oceanic and submit confidential business This action is consistent with Atmospheric Administration (NOAA), information or otherwise sensitive or categories of activities identified in Commerce. protected information. Categorical Exclusion B4 (incidental harassment authorizations with no ACTION: Notice; proposed incidental FOR FURTHER INFORMATION CONTACT: anticipated serious injury or mortality) harassment authorization; request for Amy Fowler, Office of Protected of the Companion Manual for NOAA comments on proposed authorization Resources, NMFS, (301) 427–8401. Administrative Order 216–6A, which do and possible renewal. Electronic copies of the application and not individually or cumulatively have supporting documents, as well as a list SUMMARY: NMFS has received a request the potential for significant impacts on of the references cited in this document, from Mayflower Wind Energy LLC the quality of the human environment may be obtained online at: https:// (Mayflower) for authorization to take and for which we have not identified www.fisheries.noaa.gov/permit/ marine mammals incidental to site any extraordinary circumstances that incidental-take-authorizations-under- characterization surveys off the coast of would preclude this categorical marine-mammal-protection-act. In case Massachusetts in the area of the exclusion. Accordingly, NMFS has of problems accessing these documents, Commercial Lease of Submerged Lands preliminarily determined that the please call the contact listed above. for Renewable Energy Development on issuance of the proposed IHA qualifies the Outer Continental Shelf (OCS–A SUPPLEMENTARY INFORMATION: to be categorically excluded from 0521) and along a potential submarine further NEPA review. Background cable route to landfall at Falmouth, We will review all comments Massachusetts. Pursuant to the Marine The MMPA prohibits the ‘‘take’’ of submitted in response to this notice Mammal Protection Act (MMPA), NMFS marine mammals, with certain prior to concluding our NEPA process is requesting comments on its proposal exceptions. Sections 101(a)(5)(A) and or making a final decision on the IHA to issue an incidental harassment (D) of the MMPA (16 U.S.C. 1361 et request. authorization (IHA) to incidentally take seq.) direct the Secretary of Commerce Summary of Request marine mammals during the specified (as delegated to NMFS) to allow, upon activities. NMFS is also requesting request, the incidental, but not On January 17, 2020, NMFS received comments on a possible one-year intentional, taking of small numbers of a request from Mayflower for an IHA to renewal that could be issued under marine mammals by U.S. citizens who take marine mammals incidental to site certain circumstances and if all engage in a specified activity (other than characterization surveys in the area of requirements are met, as described in commercial fishing) within a specified the Commercial Lease of Submerged Request for Public Comments at the end geographical region if certain findings Lands for Renewable Energy of this notice. NMFS will consider are made and either regulations are Development on the Outer Continental public comments prior to making any issued or, if the taking is limited to Shelf (OCS–A 0521; Lease Area) and a final decision on the issuance of the harassment, a notice of a proposed submarine export cable route requested MMPA authorizations and incidental take authorization may be connecting the Lease Area to landfall in agency responses will be summarized in provided to the public for review. Falmouth, Massachusetts. A revised the final notice of our decision. Authorization for incidental takings application was received on April 9, DATES: Comments and information must shall be granted if NMFS finds that the 2020. NMFS deemed that request to be be received no later than June 26, 2020. taking will have a negligible impact on adequate and complete. Mayflower’s ADDRESSES: Comments should be the species or stock(s) and will not have request is for take of a small number of addressed to Jolie Harrison, Chief, an unmitigable adverse impact on the 14 species of marine mammals by Level Permits and Conservation Division, availability of the species or stock(s) for B harassment only. Neither Mayflower Office of Protected Resources, National taking for subsistence uses (where nor NMFS expects serious injury or Marine Fisheries Service. Physical relevant). Further, NMFS must prescribe mortality to result from this activity comments should be sent to 1315 East- the permissible methods of taking and and, therefore, an IHA is appropriate. West Highway, Silver Spring, MD 20910 other ‘‘means of effecting the least Description of Proposed Activity and electronic comments should be sent practicable adverse impact’’ on the to [email protected]. affected species or stocks and their Overview Instructions: NMFS is not responsible habitat, paying particular attention to Mayflower proposes to conduct for comments sent by any other method, rookeries, mating grounds, and areas of marine site characterization surveys, to any other address or individual, or similar significance, and on the including high-resolution geophysical received after the end of the comment availability of the species or stocks for (HRG) and geotechnical surveys, in the period. Comments received taking for certain subsistence uses area of Commercial Lease of Submerged electronically, including all (referred to in shorthand as Lands for Renewable Energy attachments, must not exceed a 25- ‘‘mitigation’’); and requirements Development on the Outer Continental

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Shelf #OCS–A 0521 (Lease Area) and Area are approximately 38–62 meters activities. NMFS does not believe along a potential submarine cable route (m). For the purpose of this IHA the acoustic impacts from DP thrusters are to landfall at Falmouth, Massachusetts. Lease Area and export cable route are likely to result in take of marine The purpose of the proposed surveys collectively referred to as the Project mammals in the absence of activity- or is to acquire geotechnical and HRG data Area. location-specific circumstances that on the bathymetry, seafloor morphology, The proposed HRG and geotechnical may otherwise represent specific subsurface geology, environmental/ survey activities are described below. concerns for marine mammals (i.e., biological sites, seafloor obstructions, Geotechnical Survey Activities activities proposed in area known to be soil conditions, and locations of any of particular importance for a particular man-made, historical, or archaeological Mayflower’s proposed geotechnical species), or associated activities that resources within the Lease Area and survey activities would include the may increase the potential to result in export cable route to support following: • take when in concert with DP thrusters. development of offshore wind energy Sample boreholes and vibracores to In this case, we are not aware of any facilities. Up to three survey vessels determine geological and geotechnical such circumstances. Therefore, NMFS characteristics of sediments; and may operate concurrently as part of the • believes the likelihood of DP thrusters proposed surveys, but the three vessels Seabed core penetration tests used during the proposed geotechnical will spend no more than a combined (CPTs) to determine stratigraphy and in surveys resulting in harassment of total of 215 days at sea. Underwater situ conditions of the sub-surface marine mammals to be so low as to be sound resulting from Mayflower’s sediments. discountable. As DP thrusters are not Geotechnical investigation activities proposed site characterization surveys expected to result in take of marine are anticipated to be conducted from up has the potential to result in incidental mammals, these activities are not to two vessels, each equipped with take of marine mammals in the form of analyzed further in this document. behavioral harassment. dynamic positioning (DP) thrusters. Impacts to the seafloor from this Field studies conducted off the coast Dates and Duration equipment will be limited to the of Virginia to determine the underwater noise produced by CPTs and borehole The total duration of geophysical minimal contact of the sampling drilling found that these activities did survey activities would be equipment, and inserted boring and not result in underwater noise levels approximately 215 survey-days. This probes. that exceeded current thresholds for schedule is based on 24-hour operations In considering whether marine Level B harassment of marine mammals in the offshore, deep-water portion of mammal harassment is an expected (Kalapinski, 2015). Given the small size the Lease Area, and 12-hour operations outcome of exposure to a particular and energy footprint of CPTs and boring in shallow-water and nearshore areas of activity or sound source, NMFS cores, NMFS believes the likelihood that the export cable route. The surveys are considers the nature of the exposure noise from these activities would exceed expected to occur between June and itself (e.g., the magnitude, frequency, or the Level B harassment threshold at any September 2020. duration of exposure), characteristics of the marine mammals potentially appreciable distance is so low as to be Specific Geographic Region exposed, and the conditions specific to discountable. Therefore, geotechnical Mayflower’s survey activities would the geographic area where the activity is survey activities, including CPTs, occur in the Northwest Atlantic Ocean expected to occur (e.g., whether the vibracores, and borehole drilling, are approximately 60 kilometers (km) south activity is planned in a foraging area, not expected to result in harassment of of Martha’s Vineyard, Massachusetts. breeding area, nursery or pupping area, marine mammals and are not analyzed All survey effort would occur within or other biologically important area for further in this document. U.S. Federal and state waters. Surveys the species). We then consider the Geophysical Survey Activities would occur within the Lease Area and expected response of the exposed along a potential submarine cable route animal and whether the nature and Mayflower has proposed that HRG connecting the Lease Area and landfall duration or intensity of that response is survey activities would be conducted at Falmouth, Massachusetts (see Figure expected to cause disruption of continuously 24 hours per day in the 1 in Mayflower’s IHA application). behavioral patterns (e.g., migration, deep-water portion of the Project Area, breathing, nursing, breeding, feeding, or and 12 hours per day in the shallow- Detailed Description of Specific Activity sheltering) or injury. water portion of the survey area. Based Mayflower’s proposed marine site Geotechnical survey activities would on this operation schedule, the characterization surveys include HRG be conducted from drill ships equipped estimated total duration of the proposed and geotechnical survey activities. with DP thrusters. DP thrusters would activities would be a combined total of These survey activities would occur be used to position the sampling vessel 215 survey days. This includes 90 days within the Lease Area and within an on station and maintain position at each of surveys in the Lease Area and deep- export cable route between the Lease sampling location during the sampling water section of the export cable route, Area and Falmouth, Massachusetts. The activity. Sound produced through use of 95 days in the shallow-water section of Lease Area is approximately 515.5 DP thrusters is similar to that produced the cable route, and 30 days in the very square kilometers (km2; 127,388 acres) by transiting vessels and DP thrusters shallow section of the cable route and lies approximately 20 nautical are typically operated either in a (waters less than 5 m deep) (see Table miles (38 km south-southwest of similarly predictable manner or used for 1). These estimated durations include Nantucket. Water depths in the Lease short durations around stationary potential weather down time.

TABLE 1—SUMMARY OF PROPOSED HRG SURVEY SEGMENTS

Duration Survey area Operating schedule (survey days)

Lease Area and deep-water section of cable route ...... 24 hours/day ...... 90

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TABLE 1—SUMMARY OF PROPOSED HRG SURVEY SEGMENTS—Continued

Duration Survey area Operating schedule (survey days)

Shallow-water section of cable route ...... 12 hours/day (daylight only) ...... 95 Very shallow cable route ...... 12 hours/day (daylight only) ...... 30

All areas combined ...... 215

The HRG survey activities will be sensor through the water. The acoustic mounted on the hull of the vessel or supported by vessels of sufficient size to return of the pulses is recorded in a from a side pole; and accomplish the survey goals in each of series of cross-track slices, which can be • Ultra-short baseline (USBL) the specified survey areas. Surveys in joined to form an image of the sea positioning and Global Acoustic each of the identified survey areas will bottom within the swath of the beam. Positioning System (GAPS) to provide be executed by a single vessel during They are typically towed beside or high accuracy ranges by measuring the any given campaign (i.e., no more than behind the vessel or from an time between the acoustic pulses one survey vessel would operate in the autonomous vehicle; transmitted by the vessel transceiver Lease Area and deep-water section of • Multibeam echosounder (MBES) to and the equipment transponder the cable route at any given time, but determine water depths and general necessary to produce the acoustic there may be one survey vessel bottom topography. MBES sonar profile. It is a two-component system operating in the Lease Area and deep- systems project sonar pulses in several with a hull or pole mounted transceiver water cable route, one vessel in the angled beams from a transducer and one to several transponders either shallow-water section of the cable route, mounted to a ship’s hull. The beams on the seabed or on the equipment. and one vessel in the very shallow radiate out from the transducer in a fan- Table 2 identifies the representative waters of the cable route operating shaped pattern orthogonally to the survey equipment that may be used in concurrently, for a total of three vessels ship’s direction; support of planned geophysical survey activities that operate below 180 conducting HRG surveys). HRG • equipment will either by mounted to or Medium penetration sub-bottom kilohertz (kHz) and have the potential to towed behind the survey vessel at a profiler (sparkers) to map deeper cause acoustic harassment to marine typical survey speed of approximately 3 subsurface stratigraphy as needed. mammals. The make and model of the knots (kn; 5.6 km per hour). The Sparkers create acoustic pulses from 50 listed geophysical equipment may vary geophysical survey activities proposed Hz to 4 kHz omni-directionally from the depending on availability and the final by Mayflower would include the source that can penetrate several equipment choices will vary depending following: hundred meters into the seafloor. upon the final survey design, vessel • Seafloor imaging (sidescan sonar) Typically towed behind the vessel with availability, and survey contractor for seabed sediment classification adjacent hydrophone arrays to receive selection. Geophysical surveys are purposes, to identify natural and man- the return signals; expected to use several equipment types made acoustic targets resting on the • Parametric sub-bottom profiler to concurrently in order to collect multiple seafloor. The sonar device emits conical provide high data density in sub-bottom aspects of geophysical data along one or fan-shaped pulses down toward the profiles that are typically required for transect. Selection of equipment seafloor in multiple beams at a wide cable routes, very shallow water, and combinations is based on specific angle, perpendicular to the path of the archaeological surveys. Typically survey objectives.

TABLE 2—SUMMARY OF HRG SURVEY EQUIPMENT PROPOSED FOR USE BY MAYFLOWER

Operating Typical pulse Pulse HRG equipment frequency Source level Beamwidth duration repetition rate category Specific HRG equipment range (dB rms) (degrees) (kHz) (ms) (Hz)

Sparker ...... Geomarine Geo-Spark 800 J sys- 0.25 to 5 ...... 203 180 3.4 2 tem. Sub-bottom profiler.. Edgetech 3100 with SB–2–16S 2 to 16 ...... 179 65 10 10 towfish. Innomar SES–2000 Medium-100 85 to 115 ...... 241 2 2 40 Parametric.

The deployment of HRG survey Mitigation and Proposed Monitoring and affected species. Additional information equipment, including the equipment Reporting). regarding population trends and threats planned for use during Mayflower’s may be found in NMFS’s Stock Description of Marine Mammals in the proposed activity, produces sound in Area of Specified Activities Assessment Reports (SARs; https:// the marine environment that has the www.fisheries.noaa.gov/national/ potential to result in harassment of Sections 3 and 4 of the application marine-mammal-protection/marine- marine mammals. Proposed mitigation, summarize available information mammal-stock-assessments) and more monitoring, and reporting measures are regarding status and trends, distribution general information about these species described in detail later in this and habitat preferences, and behavior (e.g., physical and behavioral document (please see Proposed and life history, of the potentially descriptions) may be found on NMFS’s

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website. (https:// or authorized here, PBR and annual presented in Table 3 are the most recent www.fisheries.noaa.gov/find-species). serious injury and mortality from available at the time of publication and Table 3 lists all species or stocks for anthropogenic sources are included here are available in the 2018 Atlantic and which take is expected and proposed to as gross indicators of the status of the Gulf of Mexico Marine Mammal Stock be authorized for this action, and species and other threats. Assessments (Hayes et al., 2019a), summarizes information related to the Marine mammal abundance estimates available online at: population or stock, including presented in this document represent www.fisheries.noaa.gov/national/ regulatory status under the MMPA and the total number of individuals that marine-mammal-protection/marine- ESA and potential biological removal make up a given stock or the total mammal-stock-assessment-reports- (PBR), where known. For taxonomy, we number estimated within a particular region or and draft 2019 Atlantic and follow Committee on Taxonomy (2019). study or survey area. NMFS’s stock PBR is defined by the MMPA as the abundance estimates for most species Gulf of Mexico Marine Mammal Stock maximum number of animals, not represent the total estimate of Assessments (Hayes et al. 2019b) including natural mortalities, that may individuals within the geographic area, available online at: https:// be removed from a marine mammal if known, that comprises that stock. For www.fisheries.noaa.gov/national/ stock while allowing that stock to reach some species, this geographic area may marine-mammal-protection/draft- or maintain its optimum sustainable extend beyond U.S. waters. All managed marine-mammal-stock-assessment- population (as described in NMFS’s stocks in this region are assessed in reports. SARs). While no mortality is anticipated NMFS’s U.S. Atlantic SARs. All values TABLE 3—MARINE MAMMALS KNOWN TO OCCUR IN THE PROJECT AREA THAT MAY BE AFFECTED BY MAYFLOWER’S PROPOSED ACTIVITY

ESA/ MMPA Stock abundance Predicted Annual Common name Scientific name Stock status; (CV, N , most recent PBR 4 min abundance 3 M/SI 4 strategic abundance survey) 2 (Y/N) 1

Order Cetartiodactyla—Cetacea—Superfamily Mysticeti (baleen whales)

Family Balaenidae: North Atlantic right Eubalaena glacialis ...... Western North Atlantic .... E/D; Y 428 (0; 418; n/a) ...... 535 (0.45) * ..... 0.9 5.56 whale. Family Balaenopteridae (rorquals): Humpback whale ...... Megaptera novaeangliae Gulf of Maine ...... -/-; N 1,396 (0; 1,380; See 1,637 (0.07) * .. 22 12.15 SAR). Fin whale ...... Balaenoptera physalus ... Western North Atlantic .... E/D; Y 7,418 (0.25; 6,029; See 4,633 (0.08) .... 12 2.35 SAR). Sei whale ...... Balaenoptera borealis ..... Nova Scotia ...... E/D; Y 6292 (1.015; 3,098; see 717 (0.30) * ..... 6.2 1 SAR) 236. Minke whale ...... Balaenoptera ...... Canadian East Coast ...... -/-; N 24,202 (0.3; 18,902; See 2,112 (0.05) * .. 1189 8 acutorostrata ...... SAR).

Superfamily Odontoceti (toothed whales, dolphins, and porpoises)

Family Physeteridae: Sperm whale ...... Physeter macrocephalus NA ...... E; Y 4349 (0.28;3,451; See 5,353 (0.12) .... 6.9 0 SAR). Family Delphinidae: Long-finned pilot Globicephala melas ...... Western North Atlantic .... -/-; Y 5,636 (0.63; 3,464) ...... 18,977 (0.11) 5 35 38 whale. Bottlenose dolphin .... Tursiops spp ...... Western North Atlantic -/-; N 62,851 (0.23; 51,914; 97,476 (0.06) 5 591 28 Offshore. See SAR). Common dolphin ...... Delphinus delphis ...... Western North Atlantic .... -/-; N 172,825 (0.21; 145,216; 86,098 (0.12) .. 1,452 419 See SAR). Atlantic white-sided Lagenorhynchus acutus .. Western North Atlantic .... -/-; N 92,233 (0.71; 54,433; 37,180 (0.07) .. 544 26 dolphin. See SAR). Risso’s dolphin ...... Grampus griseus ...... Western North Atlantic .... -/-; N 35,493 (0.19; 30,289; 7,732 (0.09) .... 303 54.3 See SAR). Family Phocoenidae (por- poises): Harbor porpoise ...... Phocoena phocoena ...... Gulf of Maine/Bay of -/-; N 95,543 (0.31; 74,034; 45,089 (0.12) * 851 217 Fundy. See SAR).

Order Carnivora—Superfamily Pinnipedia

Family Phocidae (earless seals): Gray seal 6 ...... Halichoerus grypus ...... Western North Atlantic .... -/-; N 27,131 (0.19; 23,158, N/A ...... 1,389 5,688 2016). Harbor seal ...... Phoca vitulina ...... Western North Atlantic .... ¥/¥; N 75,834 (0.15; 66,884, N/A ...... 345 333 2018). 1 Endangered Species Act (ESA) status: Endangered (E), Threatened (T)/MMPA status: Depleted (D). A dash (¥) indicates that the species is not listed under the ESA or designated as depleted under the MMPA. Under the MMPA, a strategic stock is one for which the level of direct human-caused mortality exceeds PBR or which is determined to be declining and likely to be listed under the ESA within the foreseeable future. Any species or stock listed under the ESA is automatically designated under the MMPA as depleted and as a strategic stock. 2 NMFS marine mammal stock assessment reports online at: https://www.fisheries.noaa.gov/national/marine-mammal-protection/marine-mammal-stock-assessment- reports-region/. CV is coefficient of variation; Nmin is the minimum estimate of stock abundance. In some cases, CV is not applicable

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3 This information represents species- or guild-specific abundance predicted by recent habitat-based cetacean density models (Roberts et al., 2016, 2017, 2018). These models provide the best available scientific information regarding predicted density patterns of cetaceans in the U.S. Atlantic Ocean, and we provide the cor- responding abundance predictions as a point of reference. Total abundance estimates were produced by computing the mean density of all pixels in the modeled area and multiplying by its area. For those species marked with an asterisk, the available information supported development of either two or four seasonal models; each model has an associated abundance prediction. Here, we report the maximum predicted abundance. 4 Potential biological removal, defined by the MMPA as the maximum number of animals, not including natural mortalities, that may be removed from a marine mammal stock while allowing that stock to reach or maintain its optimum sustainable population size (OSP). Annual M/SI, found in NMFS’ SARs, represent annual levels of human-caused mortality plus serious injury from all sources combined (e.g., commercial fisheries, subsistence hunting, ship strike). Annual M/SI values often cannot be determined precisely and is in some cases presented as a minimum value. All M/SI values are as presented in the draft 2019 SARs (Hayes et al., 2019). 5 Abundance estimates are in some cases reported for a guild or group of species when those species are difficult to differentiate at sea. Similarly, the habitat- based cetacean density models produced by Roberts et al. (2016, 2017, 2018) are based in part on available observational data which, in some cases, is limited to genus or guild in terms of taxonomic definition. Roberts et al. (2016, 2017, 2018) produced density models to genus level for Globicephala spp. and produced a den- sity model for bottlenose dolphins that does not differentiate between offshore and coastal stocks. 6 8 NMFS stock abundance estimate applies to U.S. population only, actual stock abundance is approximately 505,000.

As indicated above, all 14 species and the Canadian Bay of Fundy, Scotian March to April and from November to (with 14 managed stocks) in Table 3 Shelf, and Gulf of St. Lawrence (Hayes December. A feeding BIA for right temporally and spatially co-occur with et al., 2019). Surveys indicate that there whales from April to June was the activity to the degree that take is are seven areas where NARWs identified northeast of the Project Area, reasonably likely to occur, and we have congregate seasonally: The coastal east of Cape Cod. proposed authorizing it. All species that waters of the southeastern United The western North Atlantic could potentially occur in the proposed States, the Great South Channel, Jordan population demonstrated overall growth survey areas are included in Table 4 of Basin, Georges Basin along the of 2.8 percent per year from 1990 to the IHA application. However, the northeastern edge of Georges Bank, Cape 2010, despite a decline in 1993 and no temporal and/or spatial occurrence of Cod and Massachusetts Bays, the Bay of growth between 1997 and 2000 (Pace et several species listed in Table 4 in the Fundy, and the Roseway Basin on the al. 2017). However, since 2010 the IHA application is such that take of Scotian Shelf (Hayes et al. 2018). The population has been in decline, with a these species is not expected to occur. closest of these seven areas is the Great 99.99 percent probability of a decline of The blue whale (Balaenoptera South Channel, which lies east of the just under 1 percent per year (Pace et al. musculus), Cuvier’s beaked whale Project Area, though none of these areas 2017). Between 1990 and 2015, calving (Ziphius cavirostris), four species of directly overlaps the Project Area. rates varied substantially, with low Mesoplodont beaked whale NMFS has designated two critical calving rates coinciding with all three (Mesoplodon spp.), dwarf and pygmy habitat areas for the NARW under the periods of decline or no growth (Pace et sperm whale (Kogia sima and Kogia ESA: the Gulf of Maine/Georges Bank al. 2017). In 2018, no new North breviceps), and striped dolphin region, and the southeast calving Atlantic right whale calves were (Stenella coeruleoalba), typically occur grounds from North Carolina to Florida. documented in their calving grounds; further offshore than the Project Area, NMFS’s regulations at 50 CFR part this represented the first time since while short-finned pilot whales 224.105 designated nearshore waters of annual NOAA aerial surveys began in (Globicephala macrorhynchus) and the Mid-Atlantic Bight as Mid-Atlantic 1989 that no new right whale calves Atlantic spotted dolphins (Stenella U.S. Seasonal Management Areas (SMA) were observed. However, in 2019 at frontalis) are typically found further for right whales in 2008. SMAs were least seven right whale calves were south than the Project Area (Hayes et al., developed to reduce the threat of identified while ten calves have been 2019b). There are stranding records of collisions between ships and right recorded in 2020. Data indicates that the harp seals (Pagophilus groenlandicus) whales around their migratory route and number of adult females fell from 200 in in Massachusetts, but the species calving grounds. All vessels greater than 2010 to 186 in 2015 while males fell typically occurs north of the Project 19.8 m (65 ft) in overall length must from 283 to 272 in the same time period Area and appearances in Massachusetts operate at speeds of 10 knots (5.1 m/s) (Pace et al., 2017). In addition, elevated usually occur between January and May, or less within these areas during North Atlantic right whale mortalities outside of the proposed survey dates specific time periods. The Lease Area is have occurred since June 7, 2017. A (Hayes et al., 2019b). As take of these located approximately 15 km southeast total of 30 confirmed dead stranded species is not anticipated as a result of of the Block Island Sound SMA, which whales (21 in Canada; 9 in the United the proposed activities, these species are is active between November 1 and April States), have been documented to date. not analyzed further. 30 each year. The Great South Channel This event has been declared an The following subsections provide SMA lies to the northeast of the Lease Unusual Mortality Event (UME), with additional information on the biology, Area and is active April 1 to July 31. human interactions (i.e., fishery-related habitat use, abundance, distribution, NOAA Fisheries may also establish entanglements and vessel strikes) and the existing threats to the non-ESA- Dynamic Management Areas (DMAs) identified as the most likely cause. More listed and ESA-listed marine mammals when and where NARWs are sighted information is available online at: that are both common in the waters of outside SMAs. DMAs are generally in https://www.fisheries.noaa.gov/ the outer continental shelf (OCS) of effect for two weeks. During this time, national/marine-life-distress/2017-2019- Southern New England and have the vessels are encouraged to avoid these north-atlantic-right-whale-unusual- likelihood of occurring, at least areas or reduce speeds to 10 knots (5.1 mortality-event. seasonally, in the Project Area and are, m/s) or less while transiting through Humpback Whale therefore, expected to potentially be these areas. taken by the proposed activities. LaBrecque et al. 2015 identified Humpback whales are found ‘‘biologically important areas (BIAs)’’ for worldwide in all oceans. Humpback North Atlantic Right Whale cetaceans on the U.S. East Coast, whales were listed as endangered under The Western Atlantic stock of North including reproductive, feeding, and the Endangered Species Conservation Atlantic right whales ranges primarily migratory areas, as well as areas where Act (ESCA) in June 1970. In 1973, the from calving grounds in coastal waters small and resident populations reside. ESA replaced the ESCA, and of the southeastern United States to The Project Area is encompassed by a humpbacks continued to be listed as feeding grounds in New England waters right whale BIA for migration from endangered. NMFS recently evaluated

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the status of the species, and on Since January 2016, elevated observed in the MA WEA) in spring and September 8, 2016, NMFS divided the humpback whale mortalities have summer. This species was observed species into 14 distinct population occurred along the Atlantic coast from primarily in the offshore (southern) segments (DPS), removed the current Maine through Florida. The event has regions of the RI/MA & MA WEAs species-level listing, and in its place been declared a UME. Partial or full during spring and was found closer to listed four DPSs as endangered and one necropsy examinations have been shore (northern areas) during the DPS as threatened (81 FR 62259; conducted on approximately half of the summer months (Kraus et al. 2016). September 8, 2016). The remaining nine 111 known cases. A portion of the Calves were observed three times and DPSs were not listed. The West Indies whales have shown evidence of pre- feeding was observed nine times during DPS, which is not listed under the ESA, mortem vessel strike; however, this the Kraus et al. (2016) study. Although is the only DPS of humpback whale that finding is not consistent across all of the fin whales were largely absent from is expected to occur in the Project Area. whales examined so more research is visual surveys in the RI/MA & MA The best estimate of population needed. NOAA is consulting with WEAs in the fall and winter months abundance for the West Indies DPS is researchers that are conducting studies (Kraus et al. 2016), acoustic data 12,312 individuals, as described in the on the humpback whale populations, indicated that this species was present NMFS Status Review of the Humpback and these efforts may provide in the RI/MA & MA WEAs during all Whale under the Endangered Species information on changes in whale months of the year. Act (Bettridge et al., 2015). distribution and habitat use that could The main threats to fin whales are Humpback whales in the Gulf of provide additional insight into how fishery interactions and vessel collisions Maine stock typically feed in the waters these vessel interactions occurred. More (Waring et al., 2017). New England between the Gulf of Maine and detailed information is available at: waters represent a major feeding ground Newfoundland during spring, summer, https://www.fisheries.noaa.gov/ for fin whales. The Lease Area is and fall, but have been observed feeding national/marine-life-distress/2016-2019- flanked by two BIAs for feeding fin in other areas, such as off the coast of humpback-whale-unusual-mortality- whales—the area to the northeast is New York (Sieswerda et al. 2015). event-along-atlantic-coast (accessed considered a BIA year-round, while the Humpback whales are frequently January 9, 2020). Three previous UMEs area off the tip of Long Island to the piscivorous when in New England involving humpback whales have southwest is a BIA from March to waters, feeding on herring (Clupea occurred since 2000, in 2003, 2005, and October (LaBrecque et al. 2015). harengus), sand lance (Ammodytes 2006. Sei Whale spp.), and other small fishes, as well as euphausiids in the northern Gulf of Fin Whale Sei whales occur worldwide, with a Maine (Paquet et al. 1997). During The fin whale is the second largest preference for oceanic waters over shelf winter, the majority of humpback baleen whale and is widely distributed waters (Horwood 2018). The Nova whales from North Atlantic feeding in all the world’s oceans, but is most Scotia stock of sei whales can be found areas (including the Gulf of Maine) mate abundant in temperate and cold waters in deeper waters of the continental shelf and calve in the West Indies, where (Aguilar and Garcı´a-Vernet 2018). Fin edge waters of the northeastern United spatial and genetic mixing among whales are presumed to migrate States and northeastward to south of feeding groups occurs, though seasonally between feeding and Newfoundland. NOAA Fisheries significant numbers of animals are breeding grounds, but their migrations considers sei whales occurring from the found in mid- and high-latitude regions are less well defined than for other U.S. East Coast to Cape Breton, Nova at this time and some individuals have baleen whales. In the North Atlantic, Scotia, and east to 42° W as the Nova been sighted repeatedly within the same some feeding areas have been identified Scotia stock of sei whales (Waring et al. winter season, indicating that not all but there are no known wintering areas 2016; Hayes et al. 2018). In the humpback whales migrate south every (Aguilar and Garcı´a-Vernet 2018). Fin Northwest Atlantic, it is speculated that winter (Waring et al., 2017). whales are found in the summer from the whales migrate from south of Cape Kraus et al. (2016) observed Baffin Bay, Spitsbergen, and the Barents Cod along the eastern Canadian coast in humpback whales in the RI/MA & MA Sea south to North Carolina and the June and July, and return on a WEAs and surrounding areas during all coast of Portugal (Rice 1998). southward migration again in seasons. Humpback whales were Apparently not all individuals migrate, September and October (Waring et al. observed most often during spring and because in winter they have been 2014; 2017). summer months, with a peak from April sighted from Newfoundland to the Gulf Spring is the period of greatest to June. Calves were observed 10 times of Mexico and the Caribbean Sea, and abundance in U.S. waters, with and feeding was observed 10 times from the Faroes and Norway south to sightings concentrated along the eastern during the Kraus et al. (2016) study. the Canary Islands (Rice 1998). Fin margin of Georges Bank and into the That study also observed one instance of whales off the eastern United States, Northeast Channel area, and along the courtship behavior. Although humpback Nova Scotia, and the southeastern coast southwestern edge of Georges Bank in whales were rarely seen during fall and of Newfoundland are believed to the area of Hydrographer Canyon winter surveys, acoustic data indicate constitute a single stock under the (Waring et al., 2015). Kraus et al. (2016) that this species may be present within present International Whaling observed sei whales in the RI/MA and the Massachusetts Wind Energy Area Commission (IWC) management scheme MA WEAs and surrounding areas only (WEA) year-round, with the highest (Donovan 1991), which has been called between the months of March and June rates of acoustic detections in winter the Western North Atlantic stock. during the 2011–2015 NLPSC aerial and spring (Kraus et al. 2016). Kraus et al. (2016) suggest that, survey. The number of sei whale A humpback whale BIA for feeding compared to other baleen whale species, observations was less than half that of has been identified northeast of the fin whales have a high multi-seasonal other baleen whale species in the two Lease Area in the Gulf of Maine, relative abundance in the Rhode Island/ seasons in which sei whales were Stellwagen Bank, and the Great South Massachusetts and Massachusetts Wind observed (spring and summer). This Channel from March through December Energy Areas (RI/MA & MA WEAs) and species demonstrated a distinct seasonal (LaBrecque et al., 2015). surrounding areas. Fin whales were habitat use pattern that was consistent

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throughout the study. Calves were minke-whale-unusual-mortality-event- summer and autumn following squid observed three times and feeding was along-atlantic-coast. and mackerel populations (Reeves et al. observed four times during the Kraus et 2002). They frequently travel into the Sperm Whale al. (2016) study. Sei whales were not central and northern Georges Bank, observed in the MA WEA and nearby The distribution of the sperm whale Great South Channel, and Gulf of Maine waters during the 2010–2017 Atlantic in the U.S. Exclusive Economic Zone areas during the late spring and remain Marine Assessment Program for (EEZ) occurs on the continental shelf through early fall (May and October) Protected Species (AMAPPS) shipboard edge, over the continental slope, and (Payne and Heinemann 1993). and aerial surveys. However, there were into mid-ocean regions (Waring et al. Note that long-finned and short- observations during the 2016 and 2017 2015). The basic social unit of the sperm finned pilot whales overlap spatially summer surveys that were identified as whale appears to be the mixed school of along the mid-Atlantic shelf break being either a fin or sei whale. A BIA adult females plus their calves and some between New Jersey and the southern for feeding for sei whales occurs east of juveniles of both sexes, normally flank of Georges Bank (Payne and the Lease Area from May through numbering 20–40 animals in all. Sperm Heinemann 1993, Hayes et al. 2017) November (LaBrecque et al. 2015). whales are somewhat migratory; Long-finned pilot whales have however, their migrations are not as occasionally been observed stranded as Minke Whale specific as seen in most of the baleen far south as South Carolina, and short- Minke whales have a cosmopolitan whale species. In the North Atlantic, finned pilot whale have stranded as far distribution that spans ice-free latitudes there appears to be a general shift north as Massachusetts (Hayes et al. (Stewart and Leatherwood 1985). The northward during the summer, but there 2017). The latitudinal ranges of the two Canadian East Coast stock can be found is no clear migration in some temperate species therefore remain uncertain. in the area from the western half of the areas (Rice 1989). In summer, the However, south of Cape Hatteras, most Davis Strait (45 °W) to the Gulf of distribution of sperm whales includes pilot whale sightings are expected to be Mexico (Waring et al., 2017). This the area east and north of Georges Bank short-finned pilot whales, while north species generally occupies waters less and into the Northeast Channel region, of approximately 42° N, most pilot than 100 m deep on the continental as well as the continental shelf (inshore whale sightings are expected to be long- shelf. There appears to be a strong of the 100-m isobath) south of New finned pilot whales (Hayes et al. 2017). seasonal component to minke whale England. In the fall, sperm whale Based on the distributions described in distribution in which spring to fall are occurrence south of New England on the Hayes et al. (2017), pilot whale sightings times of relatively widespread and continental shelf is at its highest level, in the Project Area would most likely be common occurrence, and when the and there remains a continental shelf long-finned pilot whales. whales are most abundant in New edge occurrence in the mid-Atlantic Kraus et al. (2016) observed pilot England waters, while during winter the bight. In winter, sperm whales are whales infrequently in the RI/MA & MA species appears to be largely absent concentrated east and northeast of Cape WEAs and surrounding areas. Effort- (Waring et al., 2017). Hatteras. Their distribution is typically weighted average sighting rates for pilot Kraus et al. (2016) observed minke associated with waters over the whales could not be calculated. No pilot whales in the RI/MA & MA WEAs and continental shelf break and the whales were observed during the fall or surrounding areas primarily from May continental slope and into deeper winter, and these species were only to June. This species demonstrated a waters (Whitehead et al. 1991). Sperm observed 11 times in the spring and distinct seasonal habitat usage pattern whale concentrations near drop-offs and three times in the summer. that was consistent throughout the areas with strong currents and steep Atlantic White-Sided Dolphin study. Though minke whales were topography are correlated with high observed in spring and summer months productivity. These whales occur almost White-sided dolphins are found in in the MA WEA, they were only exclusively found at the shelf break, cold temperate and sub-polar waters of observed in the lease areas in the spring. regardless of season. the North Atlantic, primarily in Minke whales were not observed Kraus et al. (2016) observed sperm continental shelf waters to the 100-m between October and February, but whales four times in the RI/MA & MA depth contour from central West acoustic data indicate the presence of WEAs during the summer and fall from Greenland to North Carolina (Waring et this species in the proposed Project 2011 to 2015. Sperm whales, traveling al., 2017). The Gulf of Maine stock is Area in winter months. A BIA for singly or in groups of three or four, were most common in continental shelf feeding for minke whales occurs east of observed three times in August and waters from Hudson Canyon to Georges the Lease Area from March through September of 2012, and once in June of Bank, and in the Gulf of Maine and November (LaBrecque et al., 2015). 2015. lower Bay of Fundy. Sighting data Since January 2017, elevated minke indicate seasonal shifts in distribution whale strandings have occurred along Long-Finned Pilot Whale (Northridge et al., 1997). During January the Atlantic coast from Maine through Long-finned pilot whales are found to May, low numbers of white-sided South Carolina, with highest numbers in from North Carolina and north to dolphins are found from Georges Bank Massachusetts, Maine, and New York. Iceland, Greenland and the Barents Sea to Jeffreys Ledge (off New Hampshire), Partial or full necropsy examinations (Waring et al., 2016). They are generally with even lower numbers south of have been conducted on more than 60 found along the edge of the continental Georges Bank, as documented by a few percent of the 79 known cases. shelf (a depth of 330 to 3,300 feet (100 strandings collected on beaches of Preliminary findings in several of the to 1,000 meters)), choosing areas of high Virginia to South Carolina. From June whales have shown evidence of human relief or submerged banks in cold or through September, large numbers of interactions or infectious disease. These temperate shoreline waters. In the white-sided dolphins are found from findings are not consistent across all of western North Atlantic, long-finned Georges Bank to the lower Bay of the whales examined, so more research pilot whales are pelagic, occurring in Fundy. From October to December, is needed. More information is available especially high densities in winter and white-sided dolphins occur at at: https://www.fisheries.noaa.gov/ spring over the continental slope, then intermediate densities from southern national/marine-life-distress/2017-2019- moving inshore and onto the shelf in Georges Bank to southern Gulf of Maine

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(Payne and Heinemann 1990). Sightings frequently observed during the summer mesopelagic cephalopods such as squid, south of Georges Bank, particularly months, with peak sightings in June and octopus, and cuttlefish, and likely around Hudson Canyon, occur year August. Short-beaked common dolphins forage at night (Hartman 2018). round but at low densities. were observed in the MA WEA and Kraus et al. (2016) results suggest that Kraus et al. (2016) suggest that nearby waters during all seasons of the Risso’s dolphins occur infrequently in Atlantic white-sided dolphins occur 2010–2017 AMAPPS surveys. the RI/MA & MA WEAs and infrequently in the RI/MA & MA WEAs surrounding areas. Risso’s dolphins and surrounding areas. Effort-weighted Bottlenose Dolphin were observed in the MA WEA and average sighting rates for Atlantic white- There are two distinct bottlenose nearby waters during spring and sided dolphins could not be calculated, dolphin ecotypes in the western North summer of the 2010–2017 AMAPPS because this species was only observed Atlantic: the coastal and offshore forms surveys. on eight occasions throughout the (Waring et al., 2015). The migratory Harbor Porpoise duration of the study (October 2011 to coastal morphotype resides in waters June 2015). No Atlantic white-sided typically less than 65.6 ft (20 m) deep, The harbor porpoise inhabits cool dolphins were observed during the along the inner continental shelf (within temperate to subarctic waters of the winter months, and this species was 7.5 km (4.6 miles) of shore), around Northern Hemisphere, generally within only sighted twice in the fall and three islands, and is continuously distributed shallow coastal waters of the times in the spring and summer. south of Long Island, New York into the continental shelf but occasionally travel Gulf of Mexico. This migratory coastal over deeper, offshore waters (Jefferson et Common Dolphin population is subdivided into 7 stocks al., 2008). They are usually seen in The common dolphin is one of the based largely upon spatial distribution small groups of one to three but most abundant and widely distributed (Waring et al. 2015). Generally, the occasionally form much larger groups cetaceans, occurring in warm temperate offshore migratory morphotype is found (Bj1800 m; Westgate et al. 1998), 100-m and 2,000-m isobaths and over although the majority of the population Risso’s Dolphins prominent underwater topography and is found over the continental shelf east to the mid-Atlantic Ridge (Waring Risso’s dolphins are distributed (Waring et al., 2017). et al., 2016). This species is found worldwide in tropical and temperate Kraus et al. (2016) indicate that between Cape Hatteras and Georges seas (Jefferson et al., 2008, 2014), and in harbor porpoises occur within the RI/ Bank from mid-January to May, the Northwest Atlantic occur from MA & MA WEAs in fall, winter, and although they migrate onto the northeast Florida to eastern Newfoundland spring. Harbor porpoises were observed edge of Georges Bank in the fall where (Leatherwood et al. 1976; Baird and in groups ranging in size from three to large aggregations occur (Kenney and Stacey 1991). Off the northeastern U.S. 15 individuals and were primarily Vigness-Raposa 2009), where large coast, Risso’s dolphins are distributed observed in the Kraus et al. (2016) study aggregations occur on Georges Bank in along the continental shelf edge from area from November through May, with fall (Waring et al. 2007). Cape Hatteras northward to Georges very few sightings during June through Kraus et al. (2016) suggested that Bank during spring, summer, and September. Harbor porpoises were short-beaked common dolphins occur autumn (CETAP 1982; Payne et al., observed in the MA WEA and nearby year-round in the RI/MA & MA WEAs 1984). In winter, the range is in the mid- waters during spring and fall of the and surrounding areas. Short-beaked Atlantic Bight and extends outward into 2010–2017 AMAPPS surveys. common dolphins were the most oceanic waters (Payne et al., 1984). frequently observed small cetacean Risso’s dolphins appear to prefer Harbor Seal species within the Kraus et al. (2016) steep sections of the continental shelf The harbor seal has a wide study area. Short-beaked common edge and deep offshore waters 100– distribution throughout coastal waters dolphins were observed in the RI/MA & 1,000 m deep (Hartman 2018). They are between 30° N and ∼80° N (Teilmann MA WEAs in all seasons but were most deep divers, feeding primarily on deep and Galatius 2018). Harbor seals are

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year-round inhabitants of the coastal frequently forage on the outer phocine distemper virus. Additional waters of eastern Canada and Maine continental shelf (Jefferson et al., 2008). testing to identify other factors that may (Katona et al. 1993), and occur Gray seals in the Project Area belong be involved in this UME are underway. seasonally along the coasts from to the western North Atlantic stock. The More information is available at: https:// southern New England to New Jersey range for this stock is thought to be from www.fisheries.noaa.gov/new-england- from September through late May New Jersey to Labrador. Current mid-atlantic/marine-life-distress/2018- (Barlas 1999; Katona et al., 1993; population trends show that gray seal 2020-pinniped-unusual-mortality-event- Schneider and Payne 1983; Schroeder abundance is likely increasing in the along. U.S. Atlantic EEZ (Waring et al., 2017). 2000). A northward movement from Marine Mammal Hearing southern New England to Maine and Although the rate of increase is eastern Canada occurs prior to the unknown, surveys conducted since their Hearing is the most important sensory pupping season, which takes place from arrival in the 1980s indicate a steady modality for marine mammals mid-May through June (Kenney 1994; increase in abundance in both Maine underwater, and exposure to Richardson 1976; Whitman and Payne and Massachusetts (Waring et al., 2017). anthropogenic sound can have 1990; Wilson 1978). Harbor seals are It is believed that recolonization by deleterious effects. To appropriately generally present in the Project Area Canadian gray seals is the source of the assess the potential effects of exposure seasonally, from September through U.S. population (Waring et al., 2017). In to sound, it is necessary to understand May (Hayes et al., 2019). U.S. waters, gray seals currently pup at the frequency ranges marine mammals four established colonies from late are able to hear. Current data indicate Kraus et al. (2016) observed harbor December to mid-February: Muskeget that not all marine mammal species seals in the RI/MA and MA WEAs and and Monomoy Islands in Massachusetts, have equal hearing capabilities (e.g., surrounding areas during the 2011–2015 and Green and Seal Islands in Maine Richardson et al., 1995; Wartzok and NLPSC aerial survey, but this survey (Hayes et al., 2019). Pupping was also Ketten, 1999; Au and Hastings, 2008). was designed to target large cetaceans so observed in the early 1980s on small To reflect this, Southall et al. (2007) locations and numbers of seal islands in Nantucket-Vineyard Sound recommended that marine mammals be observations were not included in the and since 2010, pupping has been divided into functional hearing groups study report. Harbor seals have five documented at Nomans Island in based on directly measured or estimated major haulout sites in and near the RI/ Massachusetts (Hayes et al., 2019). The hearing ranges on the basis of available MA and MA WEAs: Monomoy Island, distributions of individuals from behavioral response data, audiograms the northwestern side of Nantucket different breeding colonies overlap derived using auditory evoked potential Island, Nomans Land, the north side of outside of the breeding season. Gray techniques, anatomical modeling, and Gosnold Island, and the southeastern seals may be present in the Project Area other data. Note that no direct side of Naushon Island (Payne and year-round (Hayes et al., 2018). measurements of hearing ability have Selzer 1989). Harbor seals were Since July 2018, elevated numbers of been successfully completed for observed in the MA WEA and nearby harbor seal and gray seal mortalities mysticetes (i.e., low-frequency waters during spring, summer, and fall have occurred across Maine, New cetaceans). Subsequently, NMFS (2018) of the 2010–2017 AMAPPS surveys. Hampshire and Massachusetts. This described generalized hearing ranges for Gray Seal event has been declared a UME. these marine mammal hearing groups. Additionally, seals showing clinical Generalized hearing ranges were chosen Gray seals are found throughout the signs of stranding have occurred as far based on the approximately 65 decibel temperate and subarctic waters of the south as Virginia, although not in (dB) threshold from the normalized North Atlantic (King 1983). In the elevated numbers. Therefore the UME composite audiograms, with the northwestern Atlantic, they occur from investigation now encompasses all seal exception for lower limits for low- Labrador sound to Massachusetts (King strandings from Maine to Virginia. frequency cetaceans where the lower 1983). Gray seals often haul out on Between July 1, 2018 and March 13, bound was deemed to be biologically remote, exposed islands, shoals, and 2020, a total of 3,152 seal strandings implausible and the lower bound from unstable sandbars (Jefferson et al., have been recorded as part of this Southall et al. (2007) retained. Marine 2008). Though they spend most of their designated Northeast Pinniped UME. mammal hearing groups and their time in coastal waters, gray seals can Based on tests conducted so far, the associated hearing ranges are provided dive to depths of 300 m (984 ft) and main pathogen found in the seals is in Table 4.

TABLE 4—MARINE MAMMAL HEARING GROUPS (NMFS, 2018)

Generalized hearing Hearing group range *

Low-frequency (LF) cetaceans (baleen whales) ...... 7 Hz to 35 kHz. Mid-frequency (MF) cetaceans (dolphins, toothed whales, beaked whales, bottlenose whales) ...... 150 Hz to 160 kHz. High-frequency (HF) cetaceans (true porpoises, Kogia, river dolphins, cephalorhynchid, Lagenorhynchus cruciger & L. 275 Hz to 160 kHz. australis). Phocid pinnipeds (PW) (underwater) (true seals) ...... 50 Hz to 86 kHz. Otariid pinnipeds (OW) (underwater) (sea lions and fur seals) ...... 60 Hz to 39 kHz. * Represents the generalized hearing range for the entire group as a composite (i.e., all species within the group), where individual species’ hearing ranges are typically not as broad. Generalized hearing range chosen based on ∼65 dB threshold from normalized composite audiogram, with the exception for lower limits for LF cetaceans (Southall et al. 2007) and PW pinniped (approximation).

The pinniped functional hearing (2007) on the basis of data indicating demonstrated an extended frequency group was modified from Southall et al. that phocid species have consistently range of hearing compared to otariids,

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especially in the higher frequency range sounds have shorter wavelengths than sound waves radiate in a manner similar (Hemila¨ et al., 2006; Kastelein et al., lower frequency sounds, and typically to ripples on the surface of a pond and 2009; Reichmuth and Holt, 2013). attenuate (decrease) more rapidly, may be either directed in a beam or For more detail concerning these except in certain cases in shallower beams or may radiate in all directions groups and associated frequency ranges, water. Amplitude is the height of the (omnidirectional sources). The please see NMFS (2018) for a review of sound pressure wave or the ‘‘loudness’’ compressions and decompressions available information. Fourteen marine of a sound and is typically described associated with sound waves are mammal species (12 cetacean and two using the relative unit of the decibel detected as changes in pressure by pinniped (both phocid) species) have (dB). A sound pressure level (SPL) in dB aquatic life and man-made sound the reasonable potential to co-occur is described as the ratio between a receptors such as hydrophones. with the proposed survey activities. Of measured pressure and a reference Even in the absence of sound from the the cetacean species that may be pressure (for underwater sound, this is specified activity, the underwater present, six are classified as low- 1 microPascal (mPa)), and is a environment is typically loud due to frequency cetaceans (i.e., all mysticete logarithmic unit that accounts for large ambient sound, which is defined as species), five are classified as mid- variations in amplitude; therefore, a environmental background sound levels frequency cetaceans (i.e., all delphinid relatively small change in dB lacking a single source or point and ziphiid species and the sperm corresponds to large changes in sound (Richardson et al., 1995). The sound whale), and one is classified as high- pressure. The source level (SL) level of a region is defined by the total frequency cetaceans (i.e., harbor represents the SPL referenced at a acoustical energy being generated by porpoise). distance of 1 m from the source known and unknown sources. These sources may include physical (e.g., Potential Effects of Specified Activities (referenced to 1 mPa), while the received wind and waves, earthquakes, ice, on Marine Mammals and Their Habitat level is the SPL at the listener’s position (referenced to 1 mPa). atmospheric sound), biological (e.g., This section includes a summary and Root mean square (rms) is the sounds produced by marine mammals, discussion of the ways that components quadratic mean sound pressure over the fish, and invertebrates), and of the specified activity may impact duration of an impulse. Root mean anthropogenic (e.g., vessels, dredging, marine mammals and their habitat. The square is calculated by squaring all of construction) sound. A number of Estimated Take by Incidental the sound amplitudes, averaging the sources contribute to ambient sound, Harassment section later in this squares, and then taking the square root including wind and waves, which are a document includes a quantitative of the average. Root mean square main source of naturally occurring analysis of the number of individuals accounts for both positive and negative ambient sound for frequencies between that are expected to be taken by this values; squaring the pressures makes all 200 hertz (Hz) and 50 kilohertz (kHz) activity. The Negligible Impact Analysis values positive so that they may be (Mitson, 1995). In general, ambient and Determination section considers the accounted for in the summation of sound levels tend to increase with content of this section, the Estimated pressure levels (Hastings and Popper, increasing wind speed and wave height. Take by Incidental Harassment section, 2005). This measurement is often used Precipitation can become an important and the Proposed Mitigation section, to in the context of discussing behavioral component of total sound at frequencies draw conclusions regarding the likely effects, in part because behavioral above 500 Hz, and possibly down to 100 impacts of these activities on the effects, which often result from auditory Hz during quiet times. Marine mammals reproductive success or survivorship of cues, may be better expressed through can contribute significantly to ambient individuals and how those impacts on averaged units than by peak pressures. sound levels, as can some fish and individuals are likely to impact marine Sound exposure level (SEL; snapping shrimp. The frequency band mammal species or stocks. represented as dB re 1 mPa2-s) represents for biological contributions is from the total energy in a stated frequency approximately 12 Hz to over 100 kHz. Description of Sound Sources band over a stated time interval or Sources of ambient sound related to This section contains a brief technical event, and considers both intensity and human activity include transportation background on sound, on the duration of exposure. The per-pulse SEL (surface vessels), dredging and characteristics of certain sound types, is calculated over the time window construction, oil and gas drilling and and on metrics used in this proposal containing the entire pulse (i.e., 100 production, geophysical surveys, sonar, inasmuch as the information is relevant percent of the acoustic energy). SEL is and explosions. Vessel noise typically to the specified activity and to a a cumulative metric; it can be dominates the total ambient sound for discussion of the potential effects of the accumulated over a single pulse, or frequencies between 20 and 300 Hz. In specified activity on marine mammals calculated over periods containing general, the frequencies of found later in this document. For multiple pulses. Cumulative SEL anthropogenic sounds are below 1 kHz general information on sound and its represents the total energy accumulated and, if higher frequency sound levels interaction with the marine by a receiver over a defined time are created, they attenuate rapidly. environment, please see, e.g., Au and window or during an event. Peak sound The sum of the various natural and Hastings (2008); Richardson et al. pressure (also referred to as zero-to-peak anthropogenic sound sources that (1995). sound pressure or 0-pk) is the maximum comprise ambient sound at any given Sound travels in waves, the basic instantaneous sound pressure location and time depends not only on components of which are frequency, measurable in the water at a specified the source levels (as determined by wavelength, velocity, and amplitude. distance from the source, and is current weather conditions and levels of Frequency is the number of pressure represented in the same units as the rms biological and human activity) but also waves that pass by a reference point per sound pressure. on the ability of sound to propagate unit of time and is measured in hertz When underwater objects vibrate or through the environment. In turn, sound (Hz) or cycles per second. Wavelength is activity occurs, sound-pressure waves propagation is dependent on the the distance between two peaks or are created. These waves alternately spatially and temporally varying corresponding points of a sound wave compress and decompress the water as properties of the water column and sea (length of one cycle). Higher frequency the sound wave travels. Underwater floor, and is frequency-dependent. As a

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result of the dependence on a large Potential Effects of Underwater Sound physical discomfort, slight injury of the number of varying factors, ambient For study-specific citations, please see internal organs and the auditory system, sound levels can be expected to vary that work. Anthropogenic sounds cover or mortality (Yelverton et al., 1973). widely over both coarse and fine spatial a broad range of frequencies and sound Non-auditory physiological effects or and temporal scales. Sound levels at a levels and can have a range of highly injuries that theoretically might occur in given frequency and location can vary variable impacts on marine life, from marine mammals exposed to high level by 10–20 dB from day to day none or minor to potentially severe underwater sound or as a secondary (Richardson et al., 1995). The result is responses, depending on received effect of extreme behavioral reactions that, depending on the source type and levels, duration of exposure, behavioral (e.g., change in dive profile as a result its intensity, sound from the specified context, and various other factors. The of an avoidance reaction) caused by activity may be a negligible addition to potential effects of underwater sound exposure to sound include neurological the local environment or could form a from active acoustic sources can effects, bubble formation, resonance effects, and other types of organ or distinctive signal that may affect marine potentially result in one or more of the mammals. tissue damage (Cox et al., 2006; Southall following: temporary or permanent Sounds are often considered to fall et al., 2007; Zimmer and Tyack, 2007; hearing impairment, non-auditory into one of two general types: Pulsed Tal et al., 2015). The activities physical or physiological effects, and non-pulsed. The distinction considered here do not involve the use behavioral disturbance, stress, and between these two sound types is of devices such as explosives or mid- masking (Richardson et al., 1995; important because they have differing frequency tactical sonar that are Gordon et al., 2004; Nowacek et al., potential to cause physical effects, associated with these types of effects. particularly with regard to hearing (e.g., 2007; Southall et al., 2007; Go¨tz et al., Threshold Shift—Note that, in the Ward, 1997 in Southall et al., 2007). 2009). The degree of effect is following discussion, we refer in many Please see Southall et al. (2007) for an intrinsically related to the signal cases to a review article concerning in-depth discussion of these concepts. characteristics, received level, distance studies of noise-induced hearing loss The distinction between these two from the source, and duration of the conducted from 1996–2015 (i.e., sound types is not always obvious, as sound exposure. In general, sudden, Finneran, 2015). Marine mammals certain signals share properties of both high level sounds can cause hearing exposed to high-intensity sound, or to pulsed and non-pulsed sounds. A signal loss, as can longer exposures to lower lower-intensity sound for prolonged near a source could be categorized as a level sounds. Temporary or permanent periods, can experience hearing pulse, but due to propagation effects as loss of hearing will occur almost threshold shift (TS), which is the loss of it moves farther from the source, the exclusively for noise within an animal’s hearing sensitivity at certain frequency signal duration becomes longer (e.g., hearing range. ranges (Finneran, 2015). TS can be Greene and Richardson, 1988). Richardson et al. (1995) described permanent (PTS), in which case the loss Pulsed sound sources (e.g., airguns, zones of increasing intensity of effect of hearing sensitivity is not fully explosions, gunshots, sonic booms, that might be expected to occur, in recoverable, or temporary (TTS), in impact pile driving) produce signals relation to distance from a source and which case the animal’s hearing that are brief (typically considered to be assuming that the signal is within an threshold would recover over time less than one second), broadband, atonal animal’s hearing range. First is the area (Southall et al., 2007). Repeated sound transients (ANSI, 1986, 2005; Harris, within which the acoustic signal would exposure that leads to TTS could cause 1998; NIOSH, 1998; ISO, 2003) and be audible (potentially perceived) to the PTS. In severe cases of PTS, there can occur either as isolated events or animal but not strong enough to elicit be total or partial deafness, while in repeated in some succession. Pulsed any overt behavioral or physiological most cases the animal has an impaired sounds are all characterized by a response. The next zone corresponds ability to hear sounds in specific relatively rapid rise from ambient with the area where the signal is audible frequency ranges (Kryter, 1985). pressure to a maximal pressure value to the animal and of sufficient intensity When PTS occurs, there is physical followed by a rapid decay period that to elicit behavioral or physiological damage to the sound receptors in the ear may include a period of diminishing, responsiveness. Third is a zone within (i.e., tissue damage), whereas TTS oscillating maximal and minimal which, for signals of high intensity, the represents primarily tissue fatigue and pressures, and generally have an received level is sufficient to potentially is reversible (Southall et al., 2007). In increased capacity to induce physical cause discomfort or tissue damage to addition, other investigators have injury as compared with sounds that auditory or other systems. Overlaying suggested that TTS is within the normal lack these features. these zones to a certain extent is the bounds of physiological variability and Non-pulsed sounds can be tonal, area within which masking (i.e., when a tolerance and does not represent narrowband, or broadband, brief or sound interferes with or masks the physical injury (e.g., Ward, 1997). prolonged, and may be either ability of an animal to detect a signal of Therefore, NMFS does not consider TTS continuous or intermittent (ANSI, 1995; interest that is above the absolute to constitute auditory injury. NIOSH, 1998). Some of these non- hearing threshold) may occur; the Relationships between TTS and PTS pulsed sounds can be transient signals masking zone may be highly variable in thresholds have not been studied in of short duration but without the size. marine mammals, and there is no PTS essential properties of pulses (e.g., rapid We describe the more severe effects data for cetaceans, but such rise time). Examples of non-pulsed (i.e., certain non-auditory physical or relationships are assumed to be similar sounds include those produced by physiological effects) only briefly as we to those in humans and other terrestrial vessels, aircraft, machinery operations do not expect that there is a reasonable mammals. PTS typically occurs at such as drilling or dredging, vibratory likelihood that HRG surveys may result exposure levels at least several decibels pile driving, and active sonar systems. in such effects (see below for further above (a 40-dB threshold shift The duration of such sounds, as discussion). Potential effects from approximates PTS onset; e.g., Kryter et received at a distance, can be greatly impulsive sound sources can range in al., 1966; Miller, 1974) that inducing extended in a highly reverberant severity from effects such as behavioral mild TTS (a 6-dB threshold shift environment. disturbance or tactile perception to approximates TTS onset; e.g., Southall

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et al. 2007). Based on data from noise at levels matching previous sustained and/or potentially severe terrestrial mammals, a precautionary predictions of TTS onset (Reichmuth et reactions, such as displacement from or assumption is that the PTS thresholds al., 2016). In general, harbor seals and abandonment of high-quality habitat. for impulse sounds (such as impact pile harbor porpoises have a lower TTS Behavioral responses to sound are driving pulses as received close to the onset than other measured pinniped or highly variable and context-specific and source) are at least 6 dB higher than the cetacean species (Finneran, 2015). any reactions depend on numerous TTS threshold on a peak-pressure basis Additionally, the existing marine intrinsic and extrinsic factors (e.g., and PTS cumulative sound exposure mammal TTS data come from a limited species, state of maturity, experience, level thresholds are 15 to 20 dB higher number of individuals within these current activity, reproductive state, than TTS cumulative sound exposure species. There are no data available on auditory sensitivity, time of day), as level thresholds (Southall et al., 2007). noise-induced hearing loss for well as the interplay between factors Given the higher level of sound or mysticetes. For summaries of data on (e.g., Richardson et al., 1995; Wartzok et longer exposure duration necessary to TTS in marine mammals or for further al., 2003; Southall et al., 2007; Weilgart, cause PTS as compared with TTS, it is discussion of TTS onset thresholds, 2007; Archer et al., 2010). Behavioral considerably less likely that PTS could please see Southall et al. (2007), reactions can vary not only among occur. Finneran and Jenkins (2012), Finneran individuals but also within an TTS is the mildest form of hearing (2015), and NMFS (2018). individual, depending on previous impairment that can occur during Animals in the Project Area during experience with a sound source, exposure to sound (Kryter, 1985). While the proposed survey are unlikely to context, and numerous other factors experiencing TTS, the hearing threshold incur TTS due to the characteristics of (Ellison et al., 2012), and can vary rises, and a sound must be at a higher the sound sources, which include depending on characteristics associated level in order to be heard. In terrestrial relatively low source levels and with the sound source (e.g., whether it and marine mammals, TTS can last from generally very short pulses and duration is moving or stationary, number of minutes or hours to days (in cases of of the sound. Even for high-frequency sources, distance from the source). strong TTS). In many cases, hearing cetacean species (e.g., harbor porpoises), Please see Appendices B–C of Southall sensitivity recovers rapidly after which may have increased sensitivity to et al. (2007) for a review of studies exposure to the sound ends. Few data TTS (Lucke et al., 2009; Kastelein et al., involving marine mammal behavioral on sound levels and durations necessary 2012b), individuals would have to make responses to sound. to elicit mild TTS have been obtained a very close approach and also remain for marine mammals. very close to vessels operating these Habituation can occur when an Marine mammal hearing plays a sources in order to receive multiple animal’s response to a stimulus wanes critical role in communication with exposures at relatively high levels, as with repeated exposure, usually in the conspecifics, and interpretation of would be necessary to cause TTS. absence of unpleasant associated events environmental cues for purposes such Intermittent exposures—as would occur (Wartzok et al., 2003). Animals are most as predator avoidance and prey capture. due to the brief, transient signals likely to habituate to sounds that are Depending on the degree (elevation of produced by these sources—require a predictable and unvarying. It is threshold in dB), duration (i.e., recovery higher cumulative SEL to induce TTS important to note that habituation is time), and frequency range of TTS, and than would continuous exposures of the appropriately considered as a the context in which it is experienced, same duration (i.e., intermittent ‘‘progressive reduction in response to TTS can have effects on marine exposure results in lower levels of TTS) stimuli that are perceived as neither mammals ranging from discountable to (Mooney et al., 2009a; Finneran et al., aversive nor beneficial,’’ rather than as, serious. For example, a marine mammal 2010). Moreover, most marine mammals more generally, moderation in response may be able to readily compensate for would more likely avoid a loud sound to human disturbance (Bejder et al., a brief, relatively small amount of TTS source rather than swim in such close 2009). The opposite process is in a non-critical frequency range that proximity as to result in TTS. Kremser sensitization, when an unpleasant occurs during a time where ambient et al. (2005) noted that the probability experience leads to subsequent noise is lower and there are not as many of a cetacean swimming through the responses, often in the form of competing sounds present. area of exposure when a sub-bottom avoidance, at a lower level of exposure. Alternatively, a larger amount and profiler emits a pulse is small—because As noted, behavioral state may affect the longer duration of TTS sustained during if the animal was in the area, it would type of response. For example, animals time when communication is critical for have to pass the transducer at close that are resting may show greater successful mother/calf interactions range in order to be subjected to sound behavioral change in response to could have more serious impacts. levels that could cause TTS and would disturbing sound levels than animals Currently, TTS data only exist for four likely exhibit avoidance behavior to the that are highly motivated to remain in species of cetaceans (bottlenose area near the transducer rather than an area for feeding (Richardson et al., dolphin, beluga whale (Delphinapterus swim through at such a close range. 1995; NRC, 2003; Wartzok et al., 2003). leucas), harbor porpoise, and Yangtze Further, the restricted beam shape of the Controlled experiments with captive finless porpoise (Neophocoena majority of the geophysical survey marine mammals have showed asiaeorientalis)) and three species of equipment proposed for use makes it pronounced behavioral reactions, pinnipeds (northern elephant seal unlikely that an animal would be including avoidance of loud sound (Mirounga angustirostris), harbor seal, exposed more than briefly during the sources (Ridgway et al., 1997; Finneran and California sea lion (Zalophus passage of the vessel. et al., 2003). Observed responses of wild californianus)) exposed to a limited Behavioral Effects—Behavioral marine mammals to loud pulsed sound number of sound sources (i.e., mostly disturbance may include a variety of sources (typically airguns or acoustic tones and octave-band noise) in effects, including subtle changes in harassment devices) have been varied laboratory settings (Finneran, 2015). behavior (e.g., minor or brief avoidance but often consist of avoidance behavior TTS was not observed in trained spotted of an area or changes in vocalizations), or other behavioral changes suggesting (Phoca largha) and ringed (Pusa more conspicuous changes in similar discomfort (Morton and Symonds, 2002; hispida) seals exposed to impulsive behavioral activities, and more see also Richardson et al., 1995;

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Nowacek et al., 2007). However, many consequences would require al., 2007). Longer-term displacement is delphinids approach low-frequency information on or estimates of the possible, however, which may lead to airgun source vessels with no apparent energetic requirements of the affected changes in abundance or distribution discomfort or obvious behavioral change individuals and the relationship patterns of the affected species in the (e.g., Barkaszi et al., 2012), indicating between prey availability, foraging effort affected region if habituation to the the importance of frequency output in and success, and the life history stage of presence of the sound does not occur relation to the species’ hearing the animal. (e.g., Blackwell et al., 2004; Bejder et al., sensitivity. Variations in respiration naturally 2006; Teilmann et al., 2006). Available studies show wide variation vary with different behaviors and A flight response is a dramatic change in response to underwater sound; alterations to breathing rate as a in normal movement to a directed and therefore, it is difficult to predict function of acoustic exposure can be rapid movement away from the specifically how any given sound in a expected to co-occur with other perceived location of a sound source. particular instance might affect marine behavioral reactions, such as a flight The flight response differs from other mammals perceiving the signal. If a response or an alteration in diving. avoidance responses in the intensity of marine mammal does react briefly to an However, respiration rates in and of the response (e.g., directed movement, underwater sound by changing its themselves may be representative of rate of travel). Relatively little behavior or moving a small distance, the annoyance or an acute stress response. information on flight responses of impacts of the change are unlikely to be Various studies have shown that marine mammals to anthropogenic significant to the individual, let alone respiration rates may either be signals exist, although observations of the stock or population. However, if a unaffected or could increase, depending flight responses to the presence of sound source displaces marine on the species and signal characteristics, predators have occurred (Connor and mammals from an important feeding or again highlighting the importance in Heithaus, 1996). The result of a flight breeding area for a prolonged period, understanding species differences in the response could range from brief, impacts on individuals and populations tolerance of underwater noise when temporary exertion and displacement could be significant (e.g., Lusseau and determining the potential for impacts from the area where the signal provokes Bejder, 2007; Weilgart, 2007; NRC, resulting from anthropogenic sound flight to, in extreme cases, marine 2005). However, there are broad exposure (e.g., Kastelein et al., 2001, mammal strandings (Evans and categories of potential response, which 2005, 2006; Gailey et al., 2007; Gailey et England, 2001). However, it should be we describe in greater detail here, that al., 2016). noted that response to a perceived include alteration of dive behavior, Marine mammals vocalize for predator does not necessarily invoke alteration of foraging behavior, effects to different purposes and across multiple flight (Ford and Reeves, 2008), and breathing, interference with or alteration modes, such as whistling, echolocation whether individuals are solitary or in of vocalization, avoidance, and flight. click production, calling, and singing. groups may influence the response. Changes in dive behavior can vary Changes in vocalization behavior in Behavioral disturbance can also widely and may consist of increased or response to anthropogenic noise can impact marine mammals in more subtle decreased dive times and surface occur for any of these modes and may ways. Increased vigilance may result in intervals as well as changes in the rates result from a need to compete with an costs related to diversion of focus and of ascent and descent during a dive (e.g., increase in background noise or may attention (i.e., when a response consists Frankel and Clark, 2000; Costa et al., reflect increased vigilance or a startle of increased vigilance, it may come at 2003; Ng and Leung, 2003; Nowacek et response. For example, in the presence the cost of decreased attention to other al.; 2004; Goldbogen et al., 2013a, of potentially masking signals, critical behaviors such as foraging or 2013b). Variations in dive behavior may humpback whales and killer whales resting). These effects have generally not reflect interruptions in biologically have been observed to increase the been demonstrated for marine significant activities (e.g., foraging) or length of their songs (Miller et al., 2000; mammals, but studies involving fish they may be of little biological Fristrup et al., 2003; Foote et al., 2004), and terrestrial animals have shown that significance. The impact of an alteration while right whales have been observed increased vigilance may substantially to dive behavior resulting from an to shift the frequency content of their reduce feeding rates (e.g., Beauchamp acoustic exposure depends on what the calls upward while reducing the rate of and Livoreil, 1997; Fritz et al., 2002; animal is doing at the time of the calling in areas of increased Purser and Radford, 2011). In addition, exposure and the type and magnitude of anthropogenic noise (Parks et al., 2007). chronic disturbance can cause the response. In some cases, animals may cease sound population declines through reduction Disruption of feeding behavior can be production during production of of fitness (e.g., decline in body difficult to correlate with anthropogenic aversive signals (Bowles et al., 1994). condition) and subsequent reduction in sound exposure, so it is usually inferred Avoidance is the displacement of an reproductive success, survival, or both by observed displacement from known individual from an area or migration (e.g., Harrington and Veitch, 1992; Daan foraging areas, the appearance of path as a result of the presence of a et al., 1996; Bradshaw et al., 1998). secondary indicators (e.g., bubble nets sound or other stressors, and is one of However, Ridgway et al. (2006) reported or sediment plumes), or changes in dive the most obvious manifestations of that increased vigilance in bottlenose behavior. As for other types of disturbance in marine mammals dolphins exposed to sound over a five- behavioral response, the frequency, (Richardson et al., 1995). For example, day period did not cause any sleep duration, and temporal pattern of signal gray whales are known to change deprivation or stress effects. presentation, as well as differences in direction—deflecting from customary Many animals perform vital functions, species sensitivity, are likely migratory paths—in order to avoid noise such as feeding, resting, traveling, and contributing factors to differences in from airgun surveys (Malme et al., socializing, on a diel cycle (24-hour response in any given circumstance 1984). Avoidance may be short-term, cycle). Disruption of such functions (e.g., Croll et al., 2001; Nowacek et al.; with animals returning to the area once resulting from reactions to stressors 2004; Madsen et al., 2006; Yazvenko et the noise has ceased (e.g., Bowles et al., such as sound exposure are more likely al., 2007). A determination of whether 1994; Goold, 1996; Stone et al., 2000; to be significant if they last more than foraging disruptions incur fitness Morton and Symonds, 2002; Gailey et one diel cycle or recur on subsequent

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days (Southall et al., 2007). north-south direction on the shelf break economical (in terms of energetic costs) Consequently, a behavioral response parallel to the shore, ensonifying large response is behavioral avoidance of the lasting less than one day and not areas of deep-water habitat prior to potential stressor. Autonomic nervous recurring on subsequent days is not operating intermittently in a system responses to stress typically considered particularly severe unless it concentrated area offshore from the involve changes in heart rate, blood could directly affect reproduction or stranding site; this may have trapped pressure, and gastrointestinal activity. survival (Southall et al., 2007). Note that the animals between the sound source These responses have a relatively short there is a difference between multi-day and the shore, thus driving them duration and may or may not have a substantive behavioral reactions and towards the lagoon system. The significant long-term effect on an multi-day anthropogenic activities. For investigatory panel systematically animal’s fitness. example, just because an activity lasts excluded or deemed highly unlikely Neuroendocrine stress responses often for multiple days does not necessarily nearly all potential reasons for these involve the hypothalamus-pituitary- mean that individual animals are either animals leaving their typical pelagic adrenal system. Virtually all exposed to activity-related stressors for habitat for an area extremely atypical for neuroendocrine functions that are multiple days or, further, exposed in a the species (i.e., a shallow lagoon affected by stress—including immune manner resulting in sustained multi-day system). Notably, this was the first time competence, reproduction, metabolism, substantive behavioral responses. that such a system has been associated and behavior—are regulated by pituitary We expect that some marine with a stranding event. The panel also hormones. Stress-induced changes in mammals may exhibit behavioral noted several site- and situation-specific the secretion of pituitary hormones have responses to the HRG survey activities secondary factors that may have been implicated in failed reproduction, in the form of avoidance of the area contributed to the avoidance responses altered metabolism, reduced immune during the activity, especially the that led to the eventual entrapment and competence, and behavioral disturbance naturally shy harbor porpoise, while mortality of the whales. Specifically, (e.g., Moberg, 1987; Blecha, 2000). others such as delphinids might be shoreward-directed surface currents and Increases in the circulation of attracted to the survey activities out of elevated chlorophyll levels in the area glucocorticoids are also equated with curiosity. However, because the HRG preceding the event may have played a stress (Romano et al., 2004). survey equipment operates from a role (Southall et al., 2013). The report The primary distinction between moving vessel, and the maximum radius also notes that prior use of a similar stress (which is adaptive and does not to the Level B harassment threshold is system in the general area may have normally place an animal at risk) and relatively small, the area and time that sensitized the animals and also ‘‘distress’’ is the cost of the response. this equipment would be affecting a concluded that, for odontocete During a stress response, an animal uses glycogen stores that can be quickly given location is very small. Further, cetaceans that hear well in higher replenished once the stress is alleviated. once an area has been surveyed, it is not frequency ranges where ambient noise is In such circumstances, the cost of the likely that it will be surveyed again, typically quite low, high-power active stress response would not pose serious thereby reducing the likelihood of sonars operating in this range may be fitness consequences. However, when repeated impacts within the Project more easily audible and have potential an animal does not have sufficient Area. effects over larger areas than low We have also considered the potential energy reserves to satisfy the energetic frequency systems that have more for severe behavioral responses such as costs of a stress response, energy typically been considered in terms of stranding and associated indirect injury resources must be diverted from other anthropogenic noise impacts. It is, or mortality from Mayflower’s use of functions. This state of distress will last however, important to note that the HRG survey equipment. Commenters on until the animal replenishes its previous IHAs involving HRG surveys relatively lower output frequency, energetic reserves sufficient to restore have referenced a 2008 mass stranding higher output power, and complex normal function. of approximately 100 melon-headed nature of the system implicated in this Relationships between these whales in a Madagascar lagoon system. event, in context of the other factors physiological mechanisms, animal An investigation of the event indicated noted here, likely produced a fairly behavior, and the costs of stress that use of a high-frequency mapping unusual set of circumstances that responses are well studied through system (12-kHz multibeam indicate that such events would likely controlled experiments and for both echosounder) was the most plausible remain rare and are not necessarily laboratory and free-ranging animals and likely initial behavioral trigger of relevant to use of lower-power, higher- (e.g., Holberton et al., 1996; Hood et al., the event, while providing the caveat frequency systems more commonly used 1998; Jessop et al., 2003; Krausman et that there is no unequivocal and easily for HRG survey applications. The risk of al., 2004; Lankford et al., 2005). Stress identifiable single cause (Southall et al., similar events recurring is likely very responses due to exposure to 2013). The investigatory panel’s low, given the extensive use of active anthropogenic sounds or other stressors conclusion was based on (1) very close acoustic systems used for scientific and and their effects on marine mammals temporal and spatial association and navigational purposes worldwide on a have also been reviewed (Fair and directed movement of the survey with daily basis and the lack of direct Becker, 2000; Romano et al., 2002b) the stranding event; (2) the unusual evidence of such responses previously and, more rarely, studied in wild nature of such an event coupled with reported. populations (e.g., Romano et al., 2002a). previously documented apparent Stress Responses—An animal’s For example, Rolland et al. (2012) found behavioral sensitivity of the species to perception of a threat may be sufficient that noise reduction from reduced ship other sound types (Southall et al., 2006; to trigger stress responses consisting of traffic in the Bay of Fundy was Brownell et al., 2009); and (3) the fact some combination of behavioral associated with decreased stress in that all other possible factors considered responses, autonomic nervous system North Atlantic right whales. These and were determined to be unlikely causes. responses, neuroendocrine responses, or other studies lead to a reasonable Specifically, regarding survey patterns immune responses (e.g., Seyle, 1950; expectation that some marine mammals prior to the event and in relation to Moberg, 2000). In many cases, an will experience physiological stress bathymetry, the vessel transited in a animal’s first and sometimes most responses upon exposure to acoustic

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stressors and that it is possible that communication calls and other The most vulnerable marine mammals some of these would be classified as potentially important natural sounds are those that spend extended periods of ‘‘distress.’’ In addition, any animal such as those produced by surf and time at the surface in order to restore experiencing TTS would likely also some prey species. The masking of oxygen levels within their tissues after experience stress responses (NRC, communication signals by deep dives (e.g., the sperm whale). In 2003). anthropogenic noise may be considered addition, some baleen whales, such as NMFS does not expect that the as a reduction in the communication the North Atlantic right whale, seem generally short-term, intermittent, and space of animals (e.g., Clark et al., 2009) generally unresponsive to vessel sound, transitory HRG activities would create and may result in energetic or other making them more susceptible to vessel conditions of long-term, continuous costs as animals change their collisions (Nowacek et al., 2004). These noise and chronic acoustic exposure vocalization behavior (e.g., Miller et al., species are primarily large, slow moving leading to long-term physiological stress 2000; Foote et al., 2004; Parks et al., whales. Smaller marine mammals (e.g., responses in marine mammals. 2007; Di Iorio and Clark, 2009; Holt et bottlenose dolphin) move quickly Auditory Masking—Sound can al., 2009). Masking can be reduced in through the water column and are often disrupt behavior through masking, or situations where the signal and noise seen riding the bow wave of large ships. interfering with, an animal’s ability to come from different directions Marine mammal responses to vessels detect, recognize, or discriminate (Richardson et al., 1995), through may include avoidance and changes in between acoustic signals of interest (e.g., amplitude modulation of the signal, or dive pattern (NRC 2003). An those used for intraspecific through other compensatory behaviors examination of all known ship strikes communication and social interactions, (Houser and Moore, 2014). Masking can from all shipping sources (civilian and prey detection, predator avoidance, be tested directly in captive species military) indicates vessel speed is a navigation) (Richardson et al., 1995; (e.g., Erbe, 2008), but in wild principal factor in whether a vessel Erbe et al., 2016). Masking occurs when populations it must be either modeled strike results in death (Knowlton and the receipt of a sound is interfered with or inferred from evidence of masking Kraus 2001; Laist et al., 2001; Jensen by another coincident sound at similar compensation. There are few studies and Silber 2003; Vanderlaan and frequencies and at similar or higher addressing real-world masking sounds Taggart 2007). In assessing records with intensity, and may occur whether the likely to be experienced by marine known vessel speeds, Laist et al. (2001) sound is natural (e.g., snapping shrimp, mammals in the wild (e.g., Branstetter et found a direct relationship between the wind, waves, precipitation) or al., 2013). occurrence of a whale strike and the anthropogenic (e.g., shipping, sonar, Masking affects both senders and speed of the vessel involved in the seismic exploration) in origin. The receivers of acoustic signals and can collision. The authors concluded that ability of a noise source to mask most deaths occurred when a vessel was biologically important sounds depends potentially have long-term chronic effects on marine mammals at the traveling in excess of 24.1 km/h (14.9 on the characteristics of both the noise mph; 13 kn). Given the slow vessel source and the signal of interest (e.g., population level as well as at the individual level. Low-frequency speeds and predictable course necessary signal-to-noise ratio, temporal for data acquisition, ship strike is ambient sound levels have increased by variability, direction), in relation to each unlikely to occur during the geophysical as much as 20 dB (more than three times other and to an animal’s hearing surveys. Marine mammals would be in terms of SPL) in the world’s ocean abilities (e.g., sensitivity, frequency able to easily avoid the survey vessel from pre-industrial periods, with most range, critical ratios, frequency due to the slow vessel speed. Further, of the increase from distant commercial discrimination, directional Mayflower would implement measures shipping (Hildebrand, 2009). All discrimination, age or TTS hearing loss), (e.g., protected species monitoring, anthropogenic sound sources, but and existing ambient noise and vessel speed restrictions and separation especially chronic and lower-frequency propagation conditions. distances; see Proposed Mitigation) set signals (e.g., from vessel traffic), Under certain circumstances, marine forth in the BOEM lease to reduce the mammals experiencing significant contribute to elevated ambient sound risk of a vessel strike to marine mammal masking could also be impaired from levels, thus intensifying masking. species in the Project Area. maximizing their performance fitness in Marine mammal communications survival and reproduction. Therefore, would not likely be masked appreciably Anticipated Effects on Marine Mammal when the coincident (masking) sound is by the HRG equipment given the Habitat man-made, it may be considered directionality of the signals (for most The proposed activities would not harassment if disrupting behavioral geophysical survey equipment types result in permanent impacts to habitats patterns. It is important to distinguish proposed for use (Table 1) and the brief used directly by marine mammals, but TTS and PTS, which persist after the period when an individual mammal is may have potential minor and short- sound exposure, from masking, which likely to be within its beam. term impacts to food sources such as occurs during the sound exposure. Vessel Strike forage fish. The proposed activities Because masking (without resulting in could affect acoustic habitat (see TS) is not associated with abnormal Vessel strikes of marine mammals can masking discussion above), but physiological function, it is not cause significant wounds, which may meaningful impacts are unlikely. There considered a physiological effect, but lead to the death of the animal. An are no feeding areas, rookeries, or rather a potential behavioral effect. animal at the surface could be struck mating grounds known to be The frequency range of the potentially directly by a vessel, a surfacing animal biologically important to marine masking sound is important in could hit the bottom of a vessel, or a mammals within the proposed Project determining any potential behavioral vessel’s propeller could injure an Area with the exception of feeding BIAs impacts. For example, low-frequency animal just below the surface. The for right, humpback, fin, and sei whales signals may have less effect on high- severity of injuries typically depends on and a migratory BIA for right whales frequency echolocation sounds the size and speed of the vessel which were described previously. The produced by odontocetes but are more (Knowlton and Kraus 2001; Laist et al., HRG survey equipment will not contact likely to affect detection of mysticete 2001; Vanderlaan and Taggart 2007). the substrate and does not represent a

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source of pollution. Impacts to substrate survey equipment introduces noise to from exposure to HRG sources. Based on or from pollution are therefore not the marine environment, there is the the nature of the activity and the discussed further. potential for it to result in avoidance of anticipated effectiveness of the Effects to Prey—Sound may affect the area around the HRG survey mitigation measures (i.e., exclusion marine mammals through impacts on activities on the part of marine mammal zones and shutdown measures), the abundance, behavior, or distribution prey. The duration of fish avoidance of discussed in detail below in Proposed of prey species (e.g., crustaceans, an area after HRG surveys depart the Mitigation section, Level A harassment cephalopods, fish, zooplankton). Marine area is unknown, but a rapid return to is neither anticipated nor proposed to be mammal prey varies by species, season, normal recruitment, distribution and authorized. and location and, for some, is not well behavior is anticipated. In general, As described previously, no mortality documented. Here, we describe studies impacts to marine mammal prey species is anticipated or proposed to be regarding the effects of noise on known are expected to be minor and temporary authorized for this activity. Below we marine mammal prey. due to the expected short daily duration describe how the take is estimated. Fish utilize the soundscape and of the proposed HRG survey, the fact Generally speaking, we estimate take components of sound in their that the proposed survey is mobile by considering: (1) Acoustic thresholds environment to perform important rather than stationary, and the relatively above which NMFS believes the best functions such as foraging, predator small areas potentially affected. The available science indicates marine avoidance, mating, and spawning (e.g., areas likely impacted by the proposed mammals will be behaviorally harassed Zelick et al., 1999; Fay, 2009). activities are relatively small compared or incur some degree of permanent Depending on their hearing anatomy to the available habitat in the Atlantic hearing impairment; (2) the area or and peripheral sensory structures, Ocean. Any behavioral avoidance by volume of water that will be ensonified which vary among species, fishes hear fish of the disturbed area would still above these levels in a day; (3) the sounds using pressure and particle leave significantly large areas of fish and density or occurrence of marine motion sensitivity capabilities and marine mammal foraging habitat in the mammals within these ensonified areas; detect the motion of surrounding water nearby vicinity. Based on the and, (4) and the number of days of (Fay et al., 2008). The potential effects information discussed herein, we activities. We note that while these of noise on fishes depends on the conclude that impacts of the specified basic factors can contribute to a basic overlapping frequency range, distance activity are not likely to have more than calculation to provide an initial from the sound source, water depth of short-term adverse effects on any prey prediction of takes, additional exposure, and species-specific hearing habitat or populations of prey species. information that can qualitatively sensitivity, anatomy, and physiology. Because of the temporary nature of the inform take estimates is also sometimes Key impacts to fishes may include disturbance, and the availability of available (e.g., previous monitoring behavioral responses, hearing damage, similar habitat and resources (e.g., prey results or average group size). Below, we barotrauma (pressure-related injuries), species) in the surrounding area, any describe the factors considered here in and mortality. impacts to marine mammal habitat are more detail and present the proposed Fish react to sounds which are not expected to result in significant or take estimate. especially strong and/or intermittent long-term consequences for individual Acoustic Thresholds low-frequency sounds, and behavioral marine mammals, or to contribute to responses such as flight or avoidance adverse impacts on their populations. Using the best available science, are the most likely effects. Short Effects to habitat will not be discussed NMFS has developed acoustic duration, sharp sounds can cause overt further in this document. thresholds that identify the received or subtle changes in fish behavior and level of underwater sound above which local distribution. The reaction of fish to Estimated Take exposed marine mammals would be noise depends on the physiological state This section provides an estimate of reasonably expected to be behaviorally of the fish, past exposures, motivation the number of incidental takes proposed harassed (equated to Level B (e.g., feeding, spawning, migration), and for authorization through this IHA, harassment) or to incur PTS of some other environmental factors. Hastings which will inform both NMFS’ degree (equated to Level A harassment). and Popper (2005) identified several consideration of ‘‘small numbers’’ and Level B Harassment for non-explosive studies that suggest fish may relocate to the negligible impact determination. sources—Though significantly driven by avoid certain areas of sound energy. Harassment is the only type of take received level, the onset of behavioral Several studies have demonstrated that expected to result from these activities. disturbance from anthropogenic noise impulse sounds might affect the Except with respect to certain activities exposure is also informed to varying distribution and behavior of some not pertinent here, section 3(18) of the degrees by other factors related to the fishes, potentially impacting foraging MMPA defines ‘‘harassment’’ as any act source (e.g., frequency, predictability, opportunities or increasing energetic of pursuit, torment, or annoyance, duty cycle), the environment (e.g., costs (e.g., Fewtrell and McCauley, which (i) has the potential to injure a bathymetry), and the receiving animals 2012; Pearson et al., 1992; Skalski et al., marine mammal or marine mammal (hearing, motivation, experience, 1992; Santulli et al., 1999; Paxton et al., stock in the wild (Level A harassment); demography, behavioral context) and 2017). However, some studies have or (ii) has the potential to disturb a can be difficult to predict (Southall et shown no or slight reaction to impulse marine mammal or marine mammal al., 2007, Ellison et al., 2012). Based on sounds (e.g., Pena et al., 2013; Wardle stock in the wild by causing disruption what the available science indicates and et al., 2001; Jorgenson and Gyselman, of behavioral patterns, including, but the practical need to use a threshold 2009; Cott et al., 2012). More not limited to, migration, breathing, based on a factor that is both predictable commonly, though, the impacts of noise nursing, breeding, feeding, or sheltering and measurable for most activities, on fish are temporary. (Level B harassment). NMFS uses a generalized acoustic We are not aware of any available Authorized takes would be by Level B threshold based on received level to literature on impacts to marine mammal harassment only in the form of estimate the onset of behavioral prey from sound produced by HRG disruption of behavioral patterns for harassment. NMFS predicts that marine survey equipment. However, as the HRG individual marine mammals resulting mammals are likely to be behaviorally

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harassed in a manner we consider Level dual criteria to assess auditory injury metrics. As dual metrics, NMFS B harassment when exposed to (Level A harassment) to five different considers onset of PTS (Level A underwater anthropogenic noise above marine mammal groups (based on harassment) to have occurred when received levels of 160 dB re 1 mPa (rms) hearing sensitivity) as a result of either one of the two metrics is for impulsive and/or intermittent exposure to noise from two different exceeded (i.e., metric resulting in the sources (e.g., impact pile driving) and types of sources (impulsive or non- largest isopleth). The SELcum metric 120 dB rms for continuous sources (e.g., impulsive). The components of considers both level and duration of vibratory driving). Mayflower’s Mayflower’s proposed activity includes exposure, as well as auditory weighting proposed activity includes the use of the use of impulsive sources. functions by marine mammal hearing impulsive sources (geophysical survey Predicted distances to Level A group. equipment), and therefore use of the 160 harassment isopleths, which vary based These thresholds are provided in dB re 1 mPa (rms) threshold is on marine mammal functional hearing Table 5 below. The references, analysis, applicable. groups were calculated. The updated and methodology used in the Level A harassment for non-explosive acoustic thresholds for impulsive development of the thresholds are sources—NMFS’ Technical Guidance sounds (such as HRG survey equipment) described in NMFS 2018 Technical for Assessing the Effects of contained in the Technical Guidance Guidance, which may be accessed at: Anthropogenic Sound on Marine (NMFS, 2018) were presented as dual www.fisheries.noaa.gov/national/ Mammal Hearing (Version 2.0) metric acoustic thresholds using both marine-mammal-protection/marine- (Technical Guidance, 2018) identifies SELcum and peak sound pressure level mammal-acoustic-technical-guidance.

TABLE 5—THRESHOLDS IDENTIFYING THE ONSET OF PERMANENT THRESHOLD SHIFT

PTS onset acoustic thresholds * Hearing group (Received Level) Impulsive Non-impulsive

Low-Frequency (LF) Cetaceans ...... Cell 1: L pk,flat: 219 dB; L E,LF,24h: 183 dB ...... Cell 2: LE,LF,24h: 199 dB. Mid-Frequency (MF) Cetaceans ...... Cell 3: Lpk,flat: 230 dB; LE,MF,24h: 185 dB ...... Cell 4: LE,MF,24h: 198 dB. High-Frequency (HF) Cetaceans ...... Cell 5: Lpk,flat: 202 dB; LE,HF,24h: 155 dB ...... Cell 6: LE,HF,24h: 173 dB. Phocid Pinnipeds (PW) (Underwater) ...... Cell 7: Lpk,flat: 218 dB LE,PW,24h: 185 dB ...... Cell 8: LE,PW,24h: 201 dB. Otariid Pinnipeds (OW) (Underwater) ...... Cell 9: Lpk,flat: 232 dB; LE,OW,24h: 203 dB ...... Cell 10: LE,OW,24h: 219 dB.

NMFS considers the data provided by sound levels associated with those HRG distance to the isopleth corresponding Crocker and Fratantonio (2016) to equipment types. Tables 2 and 4 of to the threshold for Level B harassment represent the best available information Appendix B in the IHA application for the Geomarine Geo-Spark 400 tip on source levels associated with HRG shows the literature sources for the sparker (estimated at 141 m; Table 6) equipment and therefore recommends sound source levels that are shown in was used as the basis of the take that source levels provided by Crocker Table 2 and that were incorporated into calculation for all marine mammals. and Fratantonio (2016) be incorporated the modeling of Level B isopleth Note that this results in a conservative in the method described above to distances to the Level B harassment estimate of the total ensonified area estimate isopleth distances to the Level threshold. resulting from the proposed activities as Results of modeling using the B harassment threshold. In cases when Mayflower may not operate the methodology described above indicated the source level for a specific type of that, of the HRG survey equipment Geomarine Geo-Spark 400 tip sparker HRG equipment is not provided in planned for use by Mayflower that has during the entire proposed survey, and Crocker and Fratantonio (2016), NMFS the potential to result in harassment of for any survey segments in which it is recommends that either the source marine mammals, sound produced by not ultimately operated, the distance to levels provided by the manufacturer be the Geomarine Geo-Spark 400 tip the Level B harassment threshold would used, or, in instances where source sparker would propagate furthest to the be less than 141 m (Table 6). However, levels provided by the manufacturer are Level B harassment threshold (Table 6); as Mayflower cannot predict the precise unavailable or unreliable, a proxy from therefore, for the purposes of the number of survey days that will require Crocker and Fratantonio (2016) be used exposure analysis, it was assumed the the use of the Geomarine Geo-Spark 400 instead. Table 2 shows the HRG Geomarine Geo-Spark 400 tip sparker tip sparker, it was assumed that it equipment types that may be used would be active during the entire would be operated during the entire during the proposed surveys and the duration of the surveys. Thus the duration of the proposed surveys.

TABLE 6—MODELED RADIAL DISTANCES FROM HRG SURVEY EQUIPMENT TO ISOPLETHS CORRESPONDING TO LEVEL A AND LEVEL B HARASSMENT THRESHOLDS

Radial distance to level A harassment threshold (m) * Radial distance to level B harassment threshold Sound source Low frequency Mid frequency High frequency Phocid pinnipeds (m) cetaceans cetaceans cetaceans (underwater) All marine mammals

Innomar SES–2000 Medium-100 Parametric ...... <1 <1 60 <1 116

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TABLE 6—MODELED RADIAL DISTANCES FROM HRG SURVEY EQUIPMENT TO ISOPLETHS CORRESPONDING TO LEVEL A AND LEVEL B HARASSMENT THRESHOLDS—Continued

Radial distance to level A harassment threshold (m) * Radial distance to level B harassment threshold Sound source Low frequency Mid frequency High frequency Phocid pinnipeds (m) cetaceans cetaceans cetaceans (underwater) All marine mammals

Edgetech 2000–DSS ...... <1 <1 3 <1 5 Geomarine Geo-Spark 400 tip sparker (800 Joules) ...... <1 <1 8 <1 141

* Distances to the Level A harassment threshold based on the larger of the dual criteria (peak SPL and SELcum) are shown. For all sources the SELcum metric resulted in larger isopleth distances.

Predicted distances to Level A spectrum according to the marine HRG equipment and all marine mammal harassment isopleths, which vary based mammal hearing group weighting functional hearing groups are shown in on marine mammal functional hearing function (NMFS 2018), and summed Table 6. The dual criteria (peak SPL and groups (Table 5), were also calculated. across frequency; SELcum) were applied to all HRG sources The updated acoustic thresholds for 2. Propagation loss was modeled as a using the modeling methodology as impulsive sounds (such as HRG survey function of oblique range; described above, and the largest isopleth equipment) contained in the Technical 3. Per-pulse SEL was modeled for a distances for each functional hearing Guidance (NMFS, 2018) were presented stationary receiver at a fixed distance off group were then carried forward in the as dual metric acoustic thresholds using a straight survey line, using a vessel exposure analysis to be conservative. both cumulative sound exposure level transit speed of 3.5 knots and source- For all HRG sources, the SELcum metric (SELcum) and peak sound pressure level specific pulse length and repetition rate. resulted in larger isopleth distances. metrics. As dual metrics, NMFS The off-line distance is referred to as the Distances to the Level A harassment considers onset of PTS (Level A closest point of approach (CPA) and was threshold based on the larger of the dual harassment) to have occurred when performed for CPA distances between 1 criteria (peak SPL and SELcum) are either one of the two metrics is m and 10 km. The survey line length shown in Table 6. exceeded (i.e., the metric resulting in was modeled as 10 km long (analysis Modeled distances to isopleths the largest isopleth). The SELcum metric showed longer survey lines increased corresponding to the Level A considers both level and duration of SEL by a negligible amount). SEL is harassment threshold are very small (<1 exposure, as well as auditory weighting calculated as SPL + 10 log10 T/15 dB, m) for three of the four marine mammal functions by marine mammal hearing where T is the pulse duration; functional hearing groups that may be group. 4. The SEL for each survey line was impacted by the proposed activities (i.e., Modeling of distances to isopleths calculated to produce curves of low frequency and mid frequency corresponding to the Level A weighted SEL as a function of CPA cetaceans, and phocid pinnipeds; see harassment threshold was performed for distance; and Table 6). Based on the very small Level all types of HRG equipment proposed 5. The curves from Step 4 above were A harassment zones for these functional for use with the potential to result in used to estimate the CPA distance to the hearing groups, the potential for species harassment of marine mammals. impact criteria. within these functional hearing groups Mayflower used a new model developed We note that in the modeling methods to be taken by Level A harassment is by JASCO to calculate distances to Level described above and in Appendix A of considered so low as to be discountable. A harassment isopleths based on both the IHA application, sources that For harbor porpoises (a high frequency the peak SPL and the SELcum metric. For operate with a repetition rate greater specialist), the largest modeled distance the peak SPL metric, the model is a than 10 Hz were assessed with the non- to the Level A harassment threshold for series of equations that accounts for impulsive (intermittent) source criteria the high frequency functional hearing both seawater absorption and HRG while sources with a repetition rate group was 60 m (Table 6). However, as equipment beam patterns (for all HRG equal to or less than 10 Hz were noted above, modeled distances to sources with beam widths larger than assessed with the impulsive source isopleths corresponding to the Level A 90°, it was assumed these sources were criteria. NMFS does not necessarily harassment threshold are assumed to be omnidirectional). For the SELcum metric, agree with this step in the modeling conservative. Further, the Innomar a model was developed that accounts assessment, which results in nearly all source uses a very narrow beam width for the hearing sensitivity of the marine HRG sources being classified as (two degrees) and the distances to the mammal group, seawater absorption, impulsive; however, we note that the Level A harassment isopleths are eight and beam width for downwards-facing classification of the majority of HRG meters or less for the other two sources. transducers. Details of the modeling sources as impulsive results in more Level A harassment would also be more methodology for both the peak SPL and conservative modeling results. Thus, we likely to occur at close approach to the SELcum metrics are provided in have assessed the potential for Level A sound source or as a result of longer Appendix A of the IHA application. harassment to result from the proposed duration exposure to the sound source, This model entails the following steps: activities based on the modeled Level A and mitigation measures—including a 1. Weighted broadband source levels zones with the acknowledgement that 100-m exclusion zone for harbor were calculated by assuming a flat these zones are likely conservative. porpoises—are expected to minimize spectrum between the source minimum Modeled isopleth distances to Level A the potential for close approach or and maximum frequency, weighted the harassment thresholds for all types of longer duration exposure to active HRG

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sources. In addition, harbor porpoises NMFS and other organizations and information system (GIS). These data are a notoriously shy species which is incorporates data from 8 physiographic provide abundance estimates for species known to avoid vessels, and would also and 16 dynamic oceanographic and or species guilds within 10 km x 10 km be expected to avoid a sound source biological covariates, and controls for grid cells (100 km2) on a monthly or prior to that source reaching a level that the influence of sea state, group size, annual basis, depending on the species. would result in injury (Level A availability bias, and perception bias on In order to select a representative harassment). Therefore, we have the probability of making a sighting. sample of grid cells in and near the determined that the potential for take by These density models were originally Project Area, a 10-km wide perimeter Level A harassment of harbor porpoises developed for all cetacean taxa in the around the Lease Area and an 8-km is so low as to be discountable. As U.S. Atlantic (Roberts et al., 2016). In wide perimeter around the cable route NMFS has determined that the subsequent years, certain models have were created in GIS (ESRI 2017). The likelihood of take of any marine been updated on the basis of additional perimeters were then used to select grid mammals in the form of Level A data as well as certain methodological cells near the Project Area containing harassment occurring as a result of the improvements. Our evaluation of the the most recent monthly or annual proposed surveys is so low as to be changes leads to a conclusion that these estimates for each species in the Roberts discountable, we therefore do not represent the best scientific evidence et al. (2016, 2017, 2018) data. The propose to authorize the take by Level available. More information, including average monthly abundance for each A harassment of any marine mammals. the model results and supplementary species in each survey area (deep-water information for each model, is available and shallow-water) was calculated as Marine Mammal Occurrence online at seamap.env.duke.edu/models/ the mean value of the grid cells within In this section we provide the Duke-EC-GOM-2015/. Marine mammal each survey portion in each month (June information about the presence, density, density estimates in the project area through September), and then converted or group dynamics of marine mammals (animals/km2) were obtained using for density (individuals/km2) by that will inform the take calculations. these model results (Roberts et al., 2016, dividing by 100 km2 (Tables 7 and 8). The habitat-based density models 2017, 2018). The updated models Roberts et al. (2018) produced density produced by the Duke University incorporate additional sighting data, models for all seals and did not Marine Geospatial Ecology Laboratory including sightings from the NOAA differentiate by seal species. Because the (Roberts et al., 2016, 2017, 2018) Atlantic Marine Assessment Program for seasonality and habitat use by gray seals represent the best available information Protected Species (AMAPPS) surveys roughly overlaps with that of harbor regarding marine mammal densities in from 2010–2014 (NEFSC & SEFSC, seals in the survey areas, it was assumed the proposed survey area. The density 2011, 2012, 2014a, 2014b, 2015, 2016). that modeled takes of seals could occur data presented by Roberts et al. (2016, For the exposure analysis, density to either of the respective species, thus 2017, 2018) incorporates aerial and data from Roberts et al. (2016, 2017, the total number of modeled takes for shipboard line-transect survey data from 2018) were mapped using a geographic seals was applied to each species.

TABLE 7—AVERAGE MONTHLY DENSITIES FOR SPECIES IN THE LEASE AREA AND DEEP-WATER SECTION OF THE CABLE ROUTE

Estimated monthly density 2 Species (individuals/km ) June July August September

Fin whale ...... 0.0032 0.0033 0.0029 0.0025 Humpback whale ...... 0.0014 0.0011 0.0005 0.0011 Minke whale ...... 0.0024 0.0010 0.0007 0.0008 North Atlantic right whale ...... 0.0012 0.0000 0.0000 0.0000 Sei whale ...... 0.0002 0.0001 0.0000 0.0001 Atlantic white-sided dolphin ...... 0.0628 0.0446 0.0243 0.0246 Bottlenose dolphin ...... 0.0249 0.0516 0.0396 0.0494 Harbor porpoise ...... 0.0188 0.0125 0.0114 0.0093 Pilot whale ...... 0.0066 0.0066 0.0066 0.0066 Risso’s dolphin ...... 0.0002 0.0005 0.0009 0.0007 Common dolphin ...... 0.0556 0.0614 0.1069 0.1711 Sperm whale ...... 0.0001 0.0004 0.0004 0.0002 Seals (harbor and gray) ...... 0.0260 0.0061 0.0033 0.0040

TABLE 8—AVERAGE MONTHLY DENSITIES FOR SPECIES IN THE SHALLOW-WATER SECTION OF THE CABLE ROUTE

Estimated monthly density 2) Species (individuals/km June July August September

Fin whale ...... 0.0003 0.0003 0.0003 0.0003 Humpback whale ...... 0.0001 0.0001 0.0000 0.0001 Minke whale ...... 0.0002 0.0000 0.0000 0.0000 North Atlantic right whale ...... 0.0000 0.0000 0.0000 0.0000 Sei whale ...... 0.0000 0.0000 0.0000 0.0000 Atlantic white-sided dolphin ...... 0.0010 0.0006 0.0005 0.0008 Bottlenose dolphin ...... 0.2308 0.4199 0.3211 0.3077 Harbor porpoise ...... 0.0048 0.0023 0.0037 0.0036

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TABLE 8—AVERAGE MONTHLY DENSITIES FOR SPECIES IN THE SHALLOW-WATER SECTION OF THE CABLE ROUTE— Continued

Estimated monthly density 2 Species (individuals/km ) June July August September

Pilot whale ...... 0.0000 0.0000 0.0000 0.0000 Risso’s dolphin ...... 0.0000 0.0000 0.0000 0.0000 Common dolphin ...... 0.0003 0.0002 0.0006 0.0009 Sperm whale ...... 0.0000 0.0000 0.0000 0.0000 Seals (harbor and gray) ...... 0.2496 0.0281 0.0120 0.0245

Take Calculation and Estimation day during proposed HRG surveys. This harassment threshold each day in the Here we describe how the information distance accounts for survey vessels shallow-water section of the cable route. provided above is brought together to traveling at roughly 3 knots and During 125 days of anticipated survey produce a quantitative take estimate. accounts for non-active survey periods. activity over the four month period In order to estimate the number of Based on the maximum estimated (June through September), marine mammals predicted to be distance to the Level B harassment approximately 31.3 days of survey exposed to sound levels that would threshold of 141 m (Table 6) and the activity (split among two vessels) are result in harassment, radial distances to maximum estimated daily track line expected each month, for an average of predicted isopleths corresponding to distance of 110 km, an area of 31.1 km2 486.6 km2 ensonified to the Level B harassment thresholds are calculated, as would be ensonified to the Level B harassment threshold in the shallow- described above. Those distances are harassment threshold each day in the water section of the cable route each then used to calculate the area(s) around Lease Area and deep-water section of month of survey activities. the HRG survey equipment predicted to the cable route during Mayflower’s As described above, this is a be ensonified to sound levels that proposed surveys. During 90 days of conservative estimate as it assumes the exceed harassment thresholds. The area anticipated survey activity over the four HRG sources that result in the greatest estimated to be ensonified to relevant month period (June through September), isopleth distances to the Level B thresholds in a single day is then approximately 22.5 days of survey harassment threshold would be calculated, based on areas predicted to activity are expected each month, for an operated at all times during all 215 be ensonified around the HRG survey average of 699.4 km2 ensonified to the vessel days. equipment and the estimated trackline Level B harassment threshold in the The estimated numbers of marine distance traveled per day by the survey Lease Area and deep-water section of mammals that may be taken by Level B vessel. Mayflower estimates that the the cable route each month of survey harassment were calculated by proposed survey vessel in the Lease activities. multiplying the monthly density for Area and deep-water sections of the Similarly, based on the maximum each species in each survey area (Table cable route will achieve a maximum estimated distance to the Level B 7 and 8) by the respective monthly daily trackline of 110 km per day and harassment threshold of 141 m (Table 6) ensonified area within each survey the proposed survey vessels in the and the maximum estimated daily track section. The results were then summed shallow-water section of the cable route line distance of 55 km, an area of 15.6 to determine the total estimated take will achieve a maximum of 55 km per km2 would be ensonified to the Level B (Table 9).

TABLE 9—NUMBERS OF POTENTIAL INCIDENTAL TAKE OF MARINE MAMMALS PROPOSED FOR AUTHORIZATION AND PROPOSED TAKES AS A PERCENTAGE OF POPULATION

Calculated take by survey region Total Total proposed calculated Proposed Proposed instances of Species Lease area takes by takes by takes by take as a and Shallow-water level B level A level B percentage of harassment harassment b deep-water cable route harassment population a cable route

Fin whale ...... 8.3 0.6 8.9 0 9 0.3 Humpback whale ...... 2.9 0.2 3.1 0 4 0.2 Minke whale ...... 3.4 0.2 3.6 0 4 0.1 North Atlantic right whale ...... 0.9 0 0.9 0 c 3 0.8 Sei whale ...... 0.3 0 0.3 0 c 2 0.4 Atlantic white-sided dolphin ...... 109.3 1.4 110.7 0 111 0.1 Bottlenose dolphin...... 115.7 622.6 738.3 0 739 1.0 Harbor porpoise ...... 36.4 7 43.4 0 44 0.1 Pilot whale ...... 18.4 0 18.4 0 19 0.1 Risso’s dolphin ...... 1.7 0 1.7 0 b 6 0.1 Common dolphin ...... 276.3 1 277.2 0 278 0.2 Sperm whale ...... 0.8 0 0.8 0 c 2 0.0

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TABLE 9—NUMBERS OF POTENTIAL INCIDENTAL TAKE OF MARINE MAMMALS PROPOSED FOR AUTHORIZATION AND PROPOSED TAKES AS A PERCENTAGE OF POPULATION—Continued

Calculated take by survey region Total Total proposed calculated Proposed Proposed instances of Species Lease area takes by takes by takes by take as a and Shallow-water level B level A level B percentage of harassment harassment b deep-water cable route harassment population a cable route

Seals (harbor and gray) ...... 40.4 152.8 193.2 0 194 0.7 a Calculations of percentage of stock taken are based on the best available abundance estimate as shown in Table 3. In most cases the best available abundance estimate is provided by Roberts et al. (2016, 2017, 2018), when available, to maintain consistency with density estimates derived from Roberts et al. (2016, 2017, 2018). For bottlenose dolphins and seals, Roberts et al. (2016, 2017, 2018) provides only a single abun- dance estimate and does not provide abundance estimates at the stock or species level (respectively), so the abundance estimate used to esti- mate percentage of stock taken for bottlenose dolphins is derived from NMFS SARs (Hayes et al., 2019). For seals, NMFS proposes to authorize 194 takes of seals as a guild by Level B harassment and assumes take could occur to either species. For the purposes of estimating percentage of stock taken, the NMFS SARs abundance estimate for gray seals was used as the abundance of gray seals is lower than that of harbor seals (Hayes et al., 2019). b Proposed take equal to calculated take rounded up to next integer, or mean group size. c Proposed take increased to mean group size (Palka et al., 2017; Kraus et al., 2016).

Using the take methodology approach conducting the activity or other means survey equipment and monitored by described above, the take estimates for of effecting the least practicable adverse protected species observers (PSO) Risso’s dolphin, sei whale, North impact upon the affected species or during HRG surveys as follows: Atlantic right whale, and sperm whale stocks and their habitat (50 CFR • A 500-m EZ would be required for were less than the average group sizes 216.104(a)(11)). North Atlantic right whales; and estimated for these species (Table 9). In evaluating how mitigation may or • A 100-m EZ would be required for However, information on the social may not be appropriate to ensure the all other marine mammals (with the structures of these species indicates least practicable adverse impact on exception of certain small dolphin these species are likely to be species or stocks and their habitat, as species specified below). encountered in groups. Therefore it is well as subsistence uses where If a marine mammal is detected reasonable to conservatively assume applicable, we carefully consider two approaching or entering the EZs during that one group of each of these species primary factors: the proposed survey, the vessel operator will be taken during the proposed (1) The manner in which, and the would adhere to the shutdown survey. We therefore propose to degree to which, the successful procedures described below. In addition authorize the take of the average group implementation of the measure(s) is to the EZs described above, PSOs would size for these species to account for the expected to reduce impacts to marine visually monitor a 200 m Buffer Zone. possibility that the proposed survey mammals, marine mammal species or During use of acoustic sources with the encounters a group of either of these stocks, and their habitat. This considers potential to result in marine mammal species (Table 9). the nature of the potential adverse harassment (i.e., anytime the acoustic impact being mitigated (likelihood, source is active, including ramp-up), As described above, NMFS has scope, range). It further considers the occurrences of marine mammals within determined that the likelihood of take of likelihood that the measure will be the Buffer Zone (but outside the EZs) any marine mammals in the form of effective if implemented (probability of would be communicated to the vessel Level A harassment occurring as a result accomplishing the mitigating result if operator to prepare for potential of the proposed surveys is so low as to implemented as planned), the shutdown of the acoustic source. The be discountable; therefore, we do not likelihood of effective implementation Buffer Zone is not applicable when the propose to authorize take of any marine (probability implemented as planned), EZ is greater than 100 meters. PSOs mammals by Level A harassment. and; would also be required to observe a Proposed Mitigation (2) the practicability of the measures 500-m Monitoring Zone and record the for applicant implementation, which presence of all marine mammals within In order to issue an IHA under may consider such things as cost, this zone. In addition, any marine Section 101(a)(5)(D) of the MMPA, impact on operations, and, in the case mammals observed within 141 m of the NMFS must set forth the permissible of a military readiness activity, active HRG equipment operating at or methods of taking pursuant to the personnel safety, practicality of below 180 kHz would be documented activity, and other means of effecting implementation, and impact on the by PSOs as taken by Level B the least practicable impact on the effectiveness of the military readiness harassment. The zones described above species or stock and its habitat, paying activity. would be based upon the radial distance particular attention to rookeries, mating from the active equipment (rather than grounds, and areas of similar Proposed Mitigation Measures being based on distance from the vessel significance, and on the availability of NMFS proposes the following itself). the species or stock for taking for certain mitigation measures be implemented Visual Monitoring subsistence uses (latter not applicable during Mayflower’s proposed marine for this action). NMFS regulations site characterization surveys. A minimum of one NMFS-approved require applicants for incidental take PSO must be on duty and conducting authorizations to include information Marine Mammal Exclusion Zones, visual observations at all times during about the availability and feasibility Buffer Zone and Monitoring Zone daylight hours (i.e., from 30 minutes (economic and technological) of Marine mammal exclusion zones (EZ) prior to sunrise through 30 minutes equipment, methods, and manner of would be established around the HRG following sunset) and 30 minutes prior

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to and during nighttime ramp-ups of would not begin until the animal(s) has animal within the relevant EZ (i.e., 15 HRG equipment. Visual monitoring been observed exiting the respective EZ minutes for small odontocetes and seals, would begin no less than 30 minutes or Buffer Zone, or, until an additional and 30 minutes for large whales). prior to ramp-up of HRG equipment and time period has elapsed with no further Upon implementation of shutdown, would continue until 30 minutes after sighting (i.e., minimum 15 minutes for the HRG source may be reactivated after use of the acoustic source ceases or until small odontocetes and seals, and 30 the marine mammal that triggered the 30 minutes past sunset. PSOs would minutes for all other species). The pre- shutdown has been observed exiting the establish and monitor the applicable clearance requirement would include applicable EZ (i.e., the animal is not EZs, Buffer Zone and Monitoring Zone small delphinoids that approach the required to fully exit the Buffer Zone as described above. Visual PSOs would vessel (e.g., bow ride). PSOs would also where applicable) or, following a coordinate to ensure 360° visual continue to monitor the zone for 30 clearance period of 15 minutes for small coverage around the vessel from the minutes after survey equipment is shut odontocetes and seals and 30 minutes most appropriate observation posts, and down or survey activity has concluded. for all other species with no further would conduct visual observations observation of the marine mammal(s) Ramp-Up of Survey Equipment using binoculars and the naked eye within the relevant EZ. If the HRG while free from distractions and in a When technically feasible, a ramp-up equipment shuts down for brief periods consistent, systematic, and diligent procedure would be used for (i.e., less than 30 minutes) for reasons manner. PSOs would estimate distances geophysical survey equipment capable other than mitigation (e.g., mechanical to marine mammals located in of adjusting energy levels at the start or or electronic failure) the equipment may proximity to the vessel and/or relevant re-start of survey activities. The ramp- be re-activated as soon as is practicable using range finders. It would be the up procedure would be used at the at full operational level, without 30 responsibility of the Lead PSO on duty beginning of HRG survey activities in minutes of pre-clearance, only if PSOs to communicate the presence of marine order to provide additional protection to have maintained constant visual mammals as well as to communicate marine mammals near the Project Area observation during the shutdown and and enforce the action(s) that are by allowing them to detect the presence no visual detections of marine mammals necessary to ensure mitigation and of the survey and vacate the area prior occurred within the applicable EZs and monitoring requirements are to the commencement of survey Buffer Zone during that time. For a implemented as appropriate. Position equipment operation at full power. shutdown of 30 minutes or longer, or if data would be recorded using hand-held Ramp-up of the survey equipment visual observation was not continued or vessel global positioning system would not begin until the relevant EZs diligently during the pause, pre- (GPS) units for each confirmed marine and Buffer Zone has been cleared by the clearance observation is required, as mammal sighting. PSOs, as described above. HRG described above. equipment would be initiated at their The shutdown requirement would be Pre-Clearance of the Exclusion Zones lowest power output and would be waived for certain genera of small Prior to initiating HRG survey incrementally increased to full power. If delphinids (i.e., Delphinus, activities, Mayflower would implement any marine mammals are detected Lagenorhynchus, and Tursiops) under a 30-minute pre-clearance period. within the EZs or Buffer Zone prior to certain circumstances. If a delphinid(s) During pre-clearance monitoring (i.e., or during ramp-up, the HRG equipment from these genera is visually detected before ramp-up of HRG equipment would be shut down (as described approaching the vessel (i.e., to bow ride) begins), the Buffer Zone would also act below). or towed survey equipment, shutdown as an extension of the 100-m EZ in that Shutdown Procedures would not be required. If there is observations of marine mammals within uncertainty regarding identification of a the 200-m Buffer Zone would also If an HRG source is active and a marine mammal species (i.e., whether preclude HRG operations from marine mammal is observed within or the observed marine mammal(s) belongs beginning. During this period, PSOs entering a relevant EZ (as described to one of the delphinid genera for which would ensure that no marine mammals above) an immediate shutdown of the shutdown is waived), PSOs would use are observed within 200 m of the survey HRG survey equipment would be best professional judgment in making equipment (500 m in the case of North required. When shutdown is called for the decision to call for a shutdown. Atlantic right whales). HRG equipment by a PSO, the acoustic source would be If a species for which authorization would not start up until this 200-m zone immediately deactivated and any has not been granted, or, a species for (or, 500-m zone in the case of North dispute resolved only following which authorization has been granted Atlantic right whales) is clear of marine deactivation. Any PSO on duty would but the authorized number of takes have mammals for at least 30 minutes. The have the authority to delay the start of been met, approaches or is observed vessel operator would notify a survey operations or to call for within the area encompassing the Level designated PSO of the proposed start of shutdown of the acoustic source if a B harassment isopleth (141 m), HRG survey equipment as agreed upon marine mammal is detected within the shutdown would occur. with the lead PSO; the notification time applicable EZ. The vessel operator should not be less than 30 minutes prior would establish and maintain clear lines Vessel Strike Avoidance to the planned initiation of HRG of communication directly between Vessel strike avoidance measures equipment order to allow the PSOs time PSOs on duty and crew controlling the would include, but would not be to monitor the EZs and Buffer Zone for HRG source(s) to ensure that shutdown limited to, the following, except under the 30 minutes of pre-clearance. A PSO commands are conveyed swiftly while circumstances when complying with conducting pre-clearance observations allowing PSOs to maintain watch. these requirements would put the safety would be notified again immediately Subsequent restart of the HRG of the vessel or crew at risk: prior to initiating active HRG sources. equipment would only occur after the • All vessel operators and crew will If a marine mammal were observed marine mammal has either been maintain vigilant watch for cetaceans within the relevant EZs or Buffer Zone observed exiting the relevant EZ, or, and pinnipeds, and slow down or stop during the pre-clearance period, until an additional time period has their vessel to avoid striking these initiation of HRG survey equipment elapsed with no further sighting of the protected species;

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• All survey vessels, regardless of • All vessels will maintain a Monitoring and reporting size, must observe a 10-knot speed separation distance of 50 m (164 ft) or requirements prescribed by NMFS restriction in DMAs designated by greater from any sighted pinniped; and should contribute to improved NMFS for the protection of North • All vessels underway will not understanding of one or more of the Atlantic right whales from vessel divert or alter course in order to following: strikes. Note that this requirement approach any whale, delphinoid • Occurrence of marine mammal includes vessels, regardless of size, to cetacean, or pinniped. Any vessel species or stocks in the area in which adhere to a 10 knot speed limit in underway will avoid excessive speed or take is anticipated (e.g., presence, DMAs, not just vessels 65 ft or greater abrupt changes in direction to avoid abundance, distribution, density); • in length; injury to the sighted cetacean or Nature, scope, or context of likely marine mammal exposure to potential • All vessel operators will reduce pinniped. stressors/impacts (individual or vessel speed to 10 knots (18.5 km/hr) or Project-specific training will be cumulative, acute or chronic), through less when any large whale, any mother/ conducted for all vessel crew prior to better understanding of: (1) Action or calf pairs, large assemblages of non- the start of survey activities. environment (e.g., source delphinoid cetaceans are observed near Confirmation of the training and characterization, propagation, ambient (within 100 m (330 ft)) an underway understanding of the requirements will noise); (2) affected species (e.g., life vessel; be documented on a training course log history, dive patterns); (3) co-occurrence • sheet. Signing the log sheet will certify All vessels will maintain a of marine mammal species with the separation distance of 500 m (1,640 ft) that the crew members understand and will comply with the necessary action; or (4) biological or behavioral or greater from any sighted North context of exposure (e.g., age, calving or Atlantic right whale; requirements throughout the survey activities. feeding areas); • If underway, vessels must steer a • Individual marine mammal course away from any sighted North Passive Acoustic Monitoring responses (behavioral or physiological) Atlantic right whale at 10 knots (18.5 Vineyard Wind would also employ to acoustic stressors (acute, chronic, or km/hr) or less until the 500-m (1,640 ft) passive acoustic monitoring (PAM) to cumulative), other stressors, or minimum separation distance has been support monitoring during night time cumulative impacts from multiple established. If a North Atlantic right operations to provide for acquisition of stressors; • How anticipated responses to whale is sighted in a vessel’s path, or species detections at night. While PAM stressors impact either: (1) Long-term within 100 m (330 ft) to an underway is not typically required by NMFS for fitness and survival of individual vessel, the underway vessel must reduce HRG surveys, it may a provide marine mammals; or (2) populations, speed and shift the engine to neutral. additional benefit as a mitigation and Engines will not be engaged until the species, or stocks; monitoring measure to further limit • Effects on marine mammal habitat North Atlantic right whale has moved potential exposure to underwater sound outside of the vessel’s path and beyond (e.g., marine mammal prey species, at levels that could result in injury or acoustic habitat, or other important 100 m. If stationary, the vessel must not behavioral harassment. engage engines until the North Atlantic physical components of marine Based on our evaluation of the right whale has moved beyond 100 m; mammal habitat); and applicant’s proposed measures, as well • Mitigation and monitoring • All vessels will maintain a as other measures considered by NMFS, effectiveness. separation distance of 100 m (330 ft) or NMFS has preliminarily determined greater from any sighted non-delphinoid that the proposed mitigation measures Proposed Monitoring Measures cetacean. If sighted, the vessel provide the means effecting the least As described above, visual monitoring underway must reduce speed and shift practicable impact on the affected would be performed by qualified and the engine to neutral, and must not species or stocks and their habitat, NMFS-approved PSOs. Mayflower engage the engines until the non- paying particular attention to rookeries, would use independent, dedicated, delphinoid cetacean has moved outside mating grounds, and areas of similar trained PSOs, meaning that the PSOs of the vessel’s path and beyond 100 m. significance. must be employed by a third-party If a survey vessel is stationary, the Proposed Monitoring and Reporting observer provider, must have no tasks vessel will not engage engines until the other than to conduct observational non-delphinoid cetacean has moved out In order to issue an IHA for an effort, collect data, and communicate of the vessel’s path and beyond 100 m; activity, Section 101(a)(5)(D) of the with and instruct relevant vessel crew • All vessels will maintain a MMPA states that NMFS must set forth with regard to the presence of marine separation distance of 50 m (164 ft) or requirements pertaining to the mammals and mitigation requirements greater from any sighted delphinoid monitoring and reporting of such taking. (including brief alerts regarding cetacean. Any vessel underway remain The MMPA implementing regulations at maritime hazards), and must have parallel to a sighted delphinoid 50 CFR 216.104 (a)(13) indicate that successfully completed an approved cetacean’s course whenever possible, requests for authorizations must include PSO training course appropriate for and avoid excessive speed or abrupt the suggested means of accomplishing their designated task. Mayflower would changes in direction. Any vessel the necessary monitoring and reporting provide resumes of all proposed PSOs underway reduces vessel speed to 10 that will result in increased knowledge (including alternates) to NMFS for knots (18.5 km/hr) or less when pods of the species and of the level of taking review and approval prior to the start of (including mother/calf pairs) or large or impacts on populations of marine survey operations. assemblages of delphinoid cetaceans are mammals that are expected to be During survey operations (e.g., any observed. Vessels may not adjust course present in the proposed action area. day on which use of an HRG source is and speed until the delphinoid Effective reporting is critical both to planned to occur), a minimum of one cetaceans have moved beyond 50 m compliance as well as ensuring that the PSO must be on duty and conducting and/or the abeam of the underway most value is obtained from the required visual observations at all times on all vessel; monitoring. active survey vessels during daylight

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hours (i.e., from 30 minutes prior to Proposed Reporting Measures Conservation Division and the NMFS sunrise through 30 minutes following Within 90 days after completion of Northeast Regional Stranding sunset) and nighttime ramp-ups of HRG survey activities, a final technical report Coordinator as soon as feasible. The equipment. Visual monitoring would will be provided to NMFS that fully report would include the following begin no less than 30 minutes prior to documents the methods and monitoring information: • initiation of HRG survey equipment and protocols, summarizes the data recorded Time, date, and location (latitude/ would continue until one hour after use during monitoring, summarizes the longitude) of the first discovery (and of the acoustic source ceases or until 30 number of marine mammals estimated updated location information if known minutes past sunset. PSOs would and applicable); ° to have been taken during survey coordinate to ensure 360 visual activities (by species, when known), • Species identification (if known) or coverage around the vessel from the summarizes the mitigation actions taken description of the animal(s) involved; most appropriate observation posts, and during surveys (including what type of • Condition of the animal(s) would conduct visual observations mitigation and the species and number (including carcass condition if the using binoculars and the naked eye of animals that prompted the mitigation animal is dead); while free from distractions and in a action, when known), and provides an • Observed behaviors of the consistent, systematic, and diligent interpretation of the results and animal(s), if alive; manner. PSOs may be on watch for a effectiveness of all mitigation and • If available, photographs or video maximum of four consecutive hours monitoring. Any recommendations followed by a break of at least two hours footage of the animal(s); and made by NMFS must be addressed in • between watches and may conduct a General circumstances under which the final report prior to acceptance by the animal was discovered. maximum of 12 hours of observation per NMFS. In the unanticipated event of a ship 24-hour period. In cases where multiple In addition to the final technical strike of a marine mammal by any vessel vessels are surveying concurrently, any report, Mayflower will provide the involved in the activities covered by the observations of marine mammals would reports described below as necessary IHA, Mayflower would report the be communicated to PSOs on all survey during survey activities. In the incident to the NMFS OPR Permits and vessels. unanticipated event that Mayflower’s Conservation Division and the NMFS PSOs would be equipped with activities lead to an injury (Level A Northeast Regional Stranding binoculars and have the ability to harassment) of a marine mammal, Coordinator as soon as feasible. The estimate distances to marine mammals Mayflower would immediately cease the report would include the following located in proximity to the vessel and/ specified activities and report the or exclusion zone using range finders. information: incident to the NMFS Office of • Reticulated binoculars will also be Protected Resources Permits and Time, date, and location (latitude/ available to PSOs for use as appropriate Conservation Division and the NMFS longitude) of the incident; • based on conditions and visibility to Northeast Regional Stranding Species identification (if known) or support the monitoring of marine Coordinator. The report would include description of the animal(s) involved; mammals. Position data would be the following information: • Vessel’s speed during and leading recorded using hand-held or vessel GPS • Time, date, and location (latitude/ up to the incident; units for each sighting. Observations longitude) of the incident; • Vessel’s course/heading and what would take place from the highest • Name and type of vessel involved; operations were being conducted (if available vantage point on the survey • Vessel’s speed during and leading applicable); vessel. General 360-degree scanning up to the incident; • Status of all sound sources in use; would occur during the monitoring • Description of the incident; • Description of avoidance measures/ periods, and target scanning by the PSO • Status of all sound source use in the requirements that were in place at the would occur when alerted of a marine 24 hours preceding the incident; time of the strike and what additional mammal presence. • Water depth; measures were taken, if any, to avoid • During good conditions (e.g., daylight Environmental conditions (e.g., strike; hours; Beaufort sea state (BSS) 3 or less), wind speed and direction, Beaufort sea • Environmental conditions (e.g., to the maximum extent practicable, state, cloud cover, and visibility); wind speed and direction, Beaufort sea PSOs would conduct observations when • Description of all marine mammal state, cloud cover, visibility) the acoustic source is not operating for observations in the 24 hours preceding immediately preceding the strike; comparison of sighting rates and the incident; • Estimated size and length of animal behavior with and without use of the • Species identification or acoustic source and between acquisition that was struck; description of the animal(s) involved; • periods. Any observations of marine • Fate of the animal(s); and Description of the behavior of the mammals by crew members aboard any • Photographs or video footage of the marine mammal immediately preceding vessel associated with the survey would animal(s) (if equipment is available). and following the strike; • be relayed to the PSO team. Activities would not resume until If available, description of the Data on all PSO observations would NMFS is able to review the presence and behavior of any other be recorded based on standard PSO circumstances of the event. NMFS marine mammals immediately collection requirements. This would would work with Mayflower to preceding the strike; include dates, times, and locations of minimize reoccurrence of such an event • Estimated fate of the animal (e.g., survey operations; dates and times of in the future. Mayflower would not dead, injured but alive, injured and observations, location and weather; resume activities until notified by moving, blood or tissue observed in the details of marine mammal sightings NMFS. water, status unknown, disappeared); (e.g., species, numbers, behavior); and In the event that Mayflower personnel and details of any observed marine mammal discover an injured or dead marine • To the extent practicable, take that occurs (e.g., noted behavioral mammal, Mayflower would report the photographs or video footage of the disturbances). incident to the OPR Permits and animal(s).

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Negligible Impact Analysis and mammals in the area, and the required concern and, therefore, merits Determination shutdown zones. additional analysis. NMFS has NMFS has defined negligible impact Effects on individuals that are taken rigorously assessed potential impacts to as an impact resulting from the by Level B harassment, on the basis of right whales from this survey. We have specified activity that cannot be reports in the literature as well as established a 500-m shutdown zone for reasonably expected to, and is not monitoring from other similar activities, right whales which is precautionary reasonably likely to, adversely affect the will likely be limited to reactions such considering the Level B harassment species or stock through effects on as increased swimming speeds, isopleth for the largest source utilized annual rates of recruitment or survival increased surfacing time, or decreased (i.e., GeoMarine Geo-Source 400 tip (50 CFR 216.103). A negligible impact foraging (if such activity were sparker) is estimated to be 141 m. occurring). Most likely, individuals will finding is based on the lack of likely The proposed Project Area simply move away from the sound adverse effects on annual rates of encompasses or is in close proximity to source and temporarily avoid the area recruitment or survival (i.e., population- feeding BIAs for right whales (February- where the survey is occurring. We level effects). An estimate of the number April), humpback whales (March- expect that any avoidance of the survey of takes alone is not enough information December), fin whales (March-October), area by marine mammals would be on which to base an impact and sei whales (May-November) as well temporary in nature and that any marine determination. In addition to as a migratory BIA for right whales mammals that avoid the survey area considering estimates of the number of (March-April and November-December. during the survey activities would not marine mammals that might be ‘‘taken’’ Most of these feeding BIAs are extensive be permanently displaced. Even through harassment, NMFS considers and sufficiently large (705 km2 and repeated Level B harassment of some 3,149 km2 for right whales; 47,701 km2 other factors, such as the likely nature small subset of an overall stock is of any responses (e.g., intensity, for humpback whales; 2,933 km2 for fin unlikely to result in any significant whales; and 56,609 km2 for sei whales), duration), the context of any responses realized decrease in viability for the (e.g., critical reproductive time or and the acoustic footprint of the affected individuals, and thus would proposed survey is sufficiently small, location, migration), as well as effects not result in any adverse impact to the on habitat, and the likely effectiveness that feeding opportunities for these stock as a whole. whales would not be reduced of the mitigation. We also assess the Regarding impacts to marine mammal appreciably. Any whales temporarily number, intensity, and context of habitat, prey species are mobile, and are displaced from the proposed Project estimated takes by evaluating this broadly distributed throughout the Area would be expected to have information relative to population Project Area and the footprint of the status. Consistent with the 1989 activity is small; therefore, marine sufficient remaining feeding habitat preamble for NMFS’s implementing mammals that may be temporarily available to them, and would not be regulations (54 FR 40338; September 29, displaced during survey activities are prevented from feeding in other areas 1989), the impacts from other past and expected to be able to resume foraging within the biologically important ongoing anthropogenic activities are once they have moved away from areas feeding habitat. In addition, any incorporated into this analysis via their with disturbing levels of underwater displacement of whales from the BIA or impacts on the environmental baseline noise. Because of the availability of interruption of foraging bouts would be (e.g., as reflected in the regulatory status similar habitat and resources in the expected to be temporary in nature. of the species, population size and surrounding area the impacts to marine Therefore, we do not expect impacts to growth rate where known, ongoing mammals and the food sources that they whales within feeding BIAs to to effect sources of human-caused mortality, or utilize are not expected to cause the fitness of any large whales. ambient noise levels). significant or long-term consequences A migratory BIA for North Atlantic To avoid repetition, our analysis for individual marine mammals or their right whales (effective March-April and applies to all the species listed in Table populations. The HRG survey November-December) extends from 3, given that NMFS expects the equipment itself will not result in Massachusetts to Florida (LaBrecque, et anticipated effects of the proposed physical habitat disturbance. Avoidance al., 2015). Off the south coast of survey to be similar in nature. NMFS of the area around the HRG survey Massachusetts and Rhode Island, this does not anticipate that serious injury or activities by marine mammal prey BIA extends from the coast to beyond mortality would result from HRG species is possible. However, any the shelf break. The fact that the spatial surveys, even in the absence of avoidance by prey species would be acoustic footprint of the proposed mitigation, and no serious injury or expected to be short term and survey is very small relative to the mortality is authorized. As discussed in temporary. spatial extent of the available migratory the Potential Effects section, non- ESA-listed species for which takes are habitat means that right whale migration auditory physical effects and vessel authorized are North Atlantic right, fin, is not expected to be impacted by the strike are not expected to occur. We sei, and sperm whales, and these effects proposed survey. Required vessel strike expect that potential takes would be in are anticipated to be limited to lower avoidance measures will also decrease the form of short-term Level B level behavioral effects. The proposed risk of ship strike during migration. behavioral harassment in the form of survey is not anticipated to affect the NMFS is expanding the standard temporary avoidance of the area or fitness or reproductive success of avoidance measures by requiring that all decreased foraging (if such activity were individual animals. Since impacts to vessels, regardless of size, adhere to a 10 occurring), reactions that are considered individual survivorship and fecundity knot speed limit in any established to be of low severity and with no lasting are unlikely, the proposed survey is not DMAs. Additionally, limited take by biological consequences (e.g., Southall expected to result in population-level Level B harassment of North Atlantic et al., 2007). As described above, Level effects for any ESA-listed species or right whales has been proposed as HRG A harassment is not expected to result alter current population trends of any survey operations are required to shut given the nature of the operations, the ESA-listed species. down at 500 m to minimize the anticipated size of the Level A The status of the North Atlantic right potential for behavioral harassment of harassment zones, the density of marine whale population is of heightened this species.

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As noted previously, there are several disease among marine mammals. The • Survey activities would occur in active UMEs occurring in the vicinity of survey is not expected to result in the such a comparatively small portion of Mayflower’s proposed surveys. Elevated deaths of any marine mammals or the biologically important area for north humpback whale mortalities have combine with the effects of the ongoing Atlantic right whale migration, that any occurred along the Atlantic coast from UMEs to result in any additional avoidance of the Project Area due to Maine through Florida since January impacts not analyzed here. Accordingly, activities would not affect migration. In 2016. Of the cases examined, Mayflower did not request, and NMFS addition, mitigation measures to shut approximately half had evidence of is not proposing to authorize, take of down at 500 m to minimize potential for human interaction (ship strike or marine mammals by serious injury, or Level B behavioral harassment would entanglement). The UME does not yet mortality. limit both the number and severity of provide cause for concern regarding The required mitigation measures are take of the species; population-level impacts. Despite the expected to reduce the number and/or • Similarly, due to the relatively UME, the relevant population of severity of takes by giving animals the small footprint of the survey activities humpback whales (the West Indies opportunity to move away from the in relation to the size of a biologically breeding population, or distinct sound source before HRG survey important areas for right, humpback, fin, population segment (DPS)) remains equipment reaches full energy and and sei whales foraging, the survey stable. Beginning in January 2017, preventing animals from being exposed activities would not affect foraging success of this species; and elevated minke whale strandings have to sound levels that have the potential • occurred along the Atlantic coast from to cause injury (Level A harassment) Proposed mitigation measures, Maine through South Carolina, with and more severe Level B harassment including visual monitoring and highest numbers in Massachusetts, during HRG survey activities, even in shutdowns, are expected to minimize Maine, and New York. This event does the biologically important areas the intensity of potential impacts to not provide cause for concern regarding described above. No Level A harassment marine mammals. Based on the analysis contained population level impacts, as the likely is anticipated or authorized. herein of the likely effects of the population abundance is greater than NMFS expects that takes would be in specified activity on marine mammals 20,000 whales. Elevated North Atlantic the form of short-term Level B and their habitat, and taking into right whale mortalities began in June behavioral harassment in the form of consideration the implementation of the 2017, primarily in Canada. Overall, brief startling reaction and/or temporary proposed monitoring and mitigation preliminary findings support human vacating of the area, or decreased measures, NMFS preliminarily finds interactions, specifically vessel strikes foraging (if such activity were that the total marine mammal take from or rope entanglements, as the cause of occurring)—reactions that (at the scale the Mayflower’s proposed HRG surveys death for the majority of the right and intensity anticipated here) are will have a negligible impact on all whales. Elevated numbers of harbor seal considered to be of low severity and affected marine mammal species or and gray seal mortalities were first with no lasting biological consequences. stocks. observed in July 2018 and have Since both the source and the marine occurred across Maine, New Hampshire mammals are mobile, only a smaller Small Numbers and Massachusetts. Based on tests area would be ensonified by sound As noted above, only small numbers conducted so far, the main pathogen levels that could result in take for only of incidental take may be authorized found in the seals is phocine distemper a short period. Additionally, required under Sections 101(a)(5)(A) and (D) of virus although additional testing to mitigation measures would reduce the MMPA for specified activities other identify other factors that may be exposure to sound that could result in than military readiness activities. The involved in this UME are underway. more severe behavioral harassment. MMPA does not define small numbers The UME does not yet provide cause for In summary and as described above, and so, in practice, where estimated concern regarding population-level the following factors primarily support numbers are available, NMFS compares impacts to any of these stocks. For our preliminary determination that the the number of individuals taken to the harbor seals, the population abundance impacts resulting from this activity are most appropriate estimation of is over 75,000 and annual M/SI (345) is not expected to adversely affect the abundance of the relevant species or well below PBR (2,006) (Hayes et al., species or stock through effects on stock in our determination of whether 2018). For gray seals, the population annual rates of recruitment or survival: an authorization is limited to small • abundance in the United States is over No mortality or serious injury is numbers of marine mammals. 27,000, with an estimated abundance anticipated or proposed to be Additionally, other qualitative factors including seals in Canada of authorized; may be considered in the analysis, such approximately 505,000, and abundance • No Level A harassment (PTS) is as the temporal or spatial scale of the is likely increasing in the U.S. Atlantic anticipated; activities. EEZ as well as in Canada (Hayes et al., • Any foraging interruptions are The numbers of marine mammals that 2018). expected to be short term and unlikely we authorize to be taken, for all species Direct physical interactions (ship to be cause significantly impacts; and stocks, would be considered small strikes and entanglements) appear to be • Impacts on marine mammal habitat relative to the relevant stocks or responsible for many of the UME and species that serve as prey species populations (less than one third of the humpback and right whale mortalities for marine mammals are expected to be best available population abundance for recorded. The proposed HRG survey minimal and the alternate areas of all species and stocks) (see Table 9). In will require ship strike avoidance similar habitat value for marine fact, the total amount of taking proposed measures which would minimize the mammals are readily available; for authorization for all species is 1 risk of ship strikes while fishing gear • Take is anticipated to be primarily percent or less for all affected stocks. and in-water lines will not be employed Level B behavioral harassment Based on the analysis contained as part of the survey. Furthermore, the consisting of brief startling reactions herein of the proposed activity proposed activities are not expected to and/or temporary avoidance of the (including the proposed mitigation and promote the transmission of infectious Project Area; monitoring measures) and the

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anticipated take of marine mammals, Proposed Authorization Dates and Duration section of this NMFS preliminarily finds that small As a result of these preliminary notice, provided all of the following numbers of marine mammals will be determinations, NMFS proposes to issue conditions are met: taken relative to the population size of an IHA to Mayflower for conducting • A request for renewal is received no the affected species or stocks. marine site characterization surveys later than 60 days prior to the needed Unmitigable Adverse Impact Analysis offshore of Massachusetts in the area of Renewal IHA effective date (recognizing and Determination the Commercial Lease of Submerged that the Renewal IHA expiration date There are no relevant subsistence uses Lands for Renewable Energy cannot extend beyond one year from of the affected marine mammal stocks or Development on the Outer Continental expiration of the initial IHA); species implicated by this action. Shelf (OCS–A 0521) and along a • The request for renewal must Therefore, NMFS has determined that potential submarine cable route to include the following: the total taking of affected species or landfall at Falmouth, Massachusetts for a period of one year from the date of (1) An explanation that the activities stocks would not have an unmitigable to be conducted under the requested adverse impact on the availability of issuance, provided the previously mentioned mitigation, monitoring, and Renewal IHA are identical to the such species or stocks for taking for activities analyzed under the initial subsistence purposes. reporting requirements are incorporated. A draft of the proposed IHA can be IHA, are a subset of the activities, or Endangered Species Act (ESA) found at https:// include changes so minor (e.g., reduction in pile size) that the changes Section 7(a)(2) of the Endangered www.fisheries.noaa.gov/permit/ do not affect the previous analyses, Species Act of 1973 (16 U.S.C. 1531 et incidental-take-authorizations-under- mitigation and monitoring seq.) requires that each Federal agency marine-mammal-protection-act. requirements, or take estimates (with insure that any action it authorizes, Request for Public Comments the exception of reducing the type or funds, or carries out is not likely to amount of take); and jeopardize the continued existence of We request comment on our analyses, any endangered or threatened species or the proposed authorization, and any (2) A preliminary monitoring report result in the destruction or adverse other aspect of this Notice of Proposed showing the results of the required modification of designated critical IHA for the proposed HRG survey. We monitoring to date and an explanation habitat. To ensure ESA compliance for also request at this time comment on the showing that the monitoring results do the issuance of IHAs, NMFS consults potential Renewal of this proposed IHA not indicate impacts of a scale or nature internally, in this case with the NMFS as described in the paragraph below. not previously analyzed or authorized; Greater Atlantic Regional Fisheries Please include with your comments any and Office (GARFO), whenever we propose supporting data or literature citations to • Upon review of the request for to authorize take for endangered or help inform decisions on the request for Renewal, the status of the affected threatened species. this IHA or a subsequent Renewal IHA. species or stocks, and any other The NMFS Office of Protected On a case-by-case basis, NMFS may pertinent information, NMFS Resources Permits and Conservation issue a one-year Renewal IHA following determines that there are no more than Division is proposing to authorize the notice to the public providing an minor changes in the activities, the incidental take of four species of marine additional 15 days for public comments mitigation and monitoring measures mammals listed under the ESA: The when (1) up to another year of identical will remain the same and appropriate, North Atlantic right, fin, sei, and sperm or nearly identical, or nearly identical, and the findings in the initial IHA whale. The Permits and Conservation activities as described in the Specified remain valid. Division has requested initiation of Activities section of this notice is Section 7 consultation with NMFS planned or (2) the activities as described Dated: May 19, 2020. GARFO for the issuance of this IHA. in the Specified Activities section of Donna S. Wieting, NMFS will conclude the ESA section 7 this notice would not be completed by Director, Office of Protected Resources, consultation prior to reaching a the time the IHA expires and a Renewal National Marine Fisheries Service. determination regarding the proposed would allow for completion of the [FR Doc. 2020–11203 Filed 5–26–20; 8:45 am] issuance of the authorization. activities beyond that described in the BILLING CODE 3510–22–P

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Part III

Department of Labor

Employee Benefits Security Administration 29 CFR Parts 2520 and 2560 Default Electronic Disclosure by Employee Pension Benefit Plans Under ERISA; Final Rule

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DEPARTMENT OF LABOR information required to be furnished to benefits statement information required participants, beneficiaries, and other by ERISA section 105.5 Similarly, Field Employee Benefits Security individuals under Title I of ERISA.1 Assistance Bulletin 2008–03 (FAB Administration Plan administrators must use delivery 2008–03), which provides methods reasonably calculated to ensure supplementary interpretive guidance on 29 CFR Parts 2520 and 2560 actual receipt of information by the Department’s qualified default RIN 1210–AB90 participants, beneficiaries, and other investment alternative (QDIA) individuals.2 For example, in-hand regulation,6 allows plan administrators Default Electronic Disclosure by delivery to an employee at his or her who want to send required QDIA Employee Pension Benefit Plans Under workplace is acceptable, as is material notices electronically to rely on either ERISA sent by first class mail. In response to the Department’s 2002 safe harbor or the developing internet, email, and similar regulations issued by the Department of AGENCY: Employee Benefits Security technologies, the Department of Labor the Treasury (Treasury Department) and Administration, Department of Labor. (Department) first amended ERISA’s the Internal Revenue Service (IRS) at 26 ACTION: Final rule. delivery standards in 2002 by CFR 1.401(a)–21 relating to use of establishing a safe harbor for the use of electronic media.7 The impact of this SUMMARY: The Department of Labor is electronic media to furnish disclosures final rule on these Field Assistance adopting in this document a new, (the 2002 safe harbor).3 The 2002 safe Bulletins and other interpretive additional safe harbor for employee harbor was not and is not the exclusive guidance is discussed below, in the benefit plan administrators to use means by which a plan administrator section titled ‘‘Transition Issues.’’ electronic media, as a default, to furnish may use electronic media to satisfy the (2) Regulatory Background information to participants and general standard. However, plan beneficiaries of plans subject to the administrators who satisfy the The Department is issuing a final rule Employee Retirement Income Security conditions of a safe harbor are assured today following an extensive and Act of 1974 (ERISA). The rule allows that the general delivery requirements thorough evaluation not only of the plan administrators who satisfy have been satisfied. public record for this regulatory specified conditions to provide The 2002 safe harbor, which is set initiative, but also of other agencies’ participants and beneficiaries with a forth in paragraph (c) of § 2520.104b–1, disclosure rules; economic and policy notice that certain disclosures will be applies only to two categories of research concerning electronic made available on a website, or to participants and beneficiaries: First, disclosure; and information submitted furnish disclosures via email. employees who are ‘‘wired at work’’— by, and recommendations of, a variety Individuals who prefer to receive those with the ability to effectively of stakeholders. This evaluation has disclosures on paper can request paper access electronic disclosures at any been ongoing, as electronic disclosures copies of disclosures and opt out of location where they are reasonably and modes of delivery have developed electronic delivery entirely. The expected to perform their employment over time and as the Department over Department expects the rule to enhance duties and for whom access to the the years has released additional the effectiveness of ERISA disclosures employer’s electronic information disclosure requirements and and significantly reduce the costs and system is an integral part of those interpretive guidance following burden associated with furnishing many duties; and second, individuals entitled issuance of the 2002 safe harbor. The of the recurring and most costly to documents under Title I of ERISA Department consistently receives disclosures. In addition to benefiting who do not fit into the first category, but feedback about compliance with the workers, this rule will immediately who affirmatively consent to receive 2002 safe harbor and suggestions for assist employers and the retirement plan documents electronically. The 2002 safe how the safe harbor could be improved, industry as they face a number of harbor also specifies additional sometimes in response to other economic challenges due to the COVID– requirements that must be satisfied in regulatory projects, sometimes in 19 emergency, including logistical and order to furnish ERISA disclosures response to ERISA Advisory Council other impediments to compliance with electronically. The preamble to the proceedings, and otherwise. A first ERISA’s disclosure requirements. Department’s proposal of this regulation formal step, however, was the DATES: included a comprehensive summary of Department’s 2011 publication of a Effective date: The final rule is the 2002 safe harbor’s requirements.4 As Request for Information (RFI) Regarding effective on July 27, 2020. explained in detail below, the new, Electronic Disclosure 8 in response to Applicability date: The final rule is additional safe harbor adopted today Executive Order 13563, ‘‘Improving applicable on July 27, 2020. does not supersede the 2002 safe harbor; Regulation and Regulatory Review,’’ FOR FURTHER INFORMATION CONTACT: the 2002 safe harbor remains in place as issued on January 18, 2011.9 The RFI Rebecca Davis or Kristen Zarenko, another option for plan administrators. asked 30 questions soliciting views, Office of Regulations and In addition to the 2002 safe harbor, suggestions, and comments from Interpretations, Employee Benefits the Department occasionally has issued employee benefit plan stakeholders, Security Administration, (202) 693– interpretive guidance allowing different their representatives, and the general 8500. This is not a toll-free number. electronic delivery methods in limited public on whether and how to expand SUPPLEMENTARY INFORMATION: circumstances. For example, Field Assistance Bulletin 2006–03 (FAB 5 Field Assistance Bulletin No. 2006–03 (Dec. 20, A. Background 2006–03) allows plan administrators 2006). 6 See generally 29 CFR 2550.404c–5. (1) Original Delivery Standards for who meet specified criteria to provide continuous website access to pension 7 See Field Assistance Bulletin No. 2008–03, ERISA Disclosures (Q&A7), quoting 72 FR 60458 (Oct. 24, 2007). 8 76 FR 19286 (Apr. 7, 2011). The Employee Retirement Income 1 See 29 CFR 2520.104b–1. 9 See 76 FR 3821 (Jan. 21, 2011). The Executive Security Act of 1974 (ERISA) and 2 See 29 CFR 2520.104b–1(b)(1). Order stresses the importance of achieving regulations thereunder provide general 3 See 29 CFR 2520.104b–1(c). regulatory goals through the most innovative and standards for the delivery of all 4 84 FR 56894, 56895 (Oct. 23, 2019). least burdensome tools available.

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or modify the 2002 safe harbor. The Advisory Council 13 and the U.S. required disclosures and ease the costs Department carefully evaluated Government Accountability Office 14 and regulatory burdens given the responses to this RFI to better also have made recommendations to the number and complexity of ERISA understand the benefits, challenges, and Department concerning possible notices. In compliance with the Order, costs of electronic delivery and other changes to ERISA’s electronic delivery the Department worked with Treasury disclosure-related issues.10 rules to improve participants’ disclosure Department staff throughout the Since publication of the 2011 RFI, the experience and reduce administrative regulatory process and, within the Department has analyzed whether there burdens. And the Department continues required one-year period, completed a are more effective ways to regulate the to closely monitor Congressional review of actions that could be taken ‘‘to disclosure and delivery of information interest in expanding the use of make retirement plan disclosures to ERISA plan participants and electronic media for ERISA required under ERISA and the Internal 15 beneficiaries. Stakeholders routinely ask disclosures. Revenue Code of 1986 more the Department to recognize ongoing A final important development, prior understandable and useful for changes in technology, as some other to the Department’s issuance of the participants and beneficiaries, while proposed regulation in October 2019, federal agencies have done, and to take also reducing the costs and burdens was the President’s issuance of advantage of those changes by updating they impose on employers and other Executive Order 13847 on August 31, and modernizing ERISA’s electronic plan fiduciaries responsible for their 2018.16 In relevant part, the Order 17 delivery standards in the 2002 safe production and distribution.’’ The instructed the Department, in harbor. The Department has had Order directed that the Department consultation with the Treasury numerous discussions with staff of other consider proposing appropriate Department, to review whether federal government agencies after regulations or other guidance, if a regulatory or other actions could be reviewing their guidance and standards determination is made that action taken to improve the effectiveness of for electronic delivery of required should be taken. The Department’s information, including the Treasury proposed regulation, issued October 23, 13 See, e.g., Mandated Disclosure for Retirement 2019 and finalized herein, directly Department, IRS, and the Securities and Plans—Enhancing Effectiveness for Participants Exchange Commission (SEC). The and Sponsors, ERISA Advisory Council (Nov. responds to the mandate set forth in 18 preamble to the Department’s proposed 2017); 2009 ERISA Advisory Council Report on Executive Order 13847. regulation discussed at length the Promoting Retirement Literacy and Security by In the preamble to the proposal, the Streamlining Disclosures, at https://www.dol.gov/ Department’s review of these agencies’ Department described in detail the agencies/ebsa/about-ebsa/about-us/erisa-advisory- standard of the Treasury Department guidance, all of which informed the council/2009-promoting-retirement-literacy-and- Department in publishing the proposed security-by-streamlining-disclosures-to- and the IRS for notices using electronic rule, as did standards and practices of participants-and-beneficiaries; 2007 ERISA media, which was issued in 2006 at 26 Advisory Council Working Group Report on 19 the Social Security Administration, the CFR 1.401(a)–21. Affected parties, Participant Benefit Statements, at https:// including the ERISA Advisory Council, Comptroller of the Currency, and the www.dol.gov/agencies/ebsa/about-ebsa/about-us/ Federal Thrift Savings Plan (TSP).11 erisa-advisory-council/2007-participant-benefit- had previously encouraged the Commenters agreed that it is important statements; and 2006 ERISA Advisory Council Report Working Group on Prudent Investment 17 for the Department to continue Id. Process, at https://www.dol.gov/agencies/ebsa/ 18 A few commenters suggested that the proposed coordinating with other agencies, about-ebsa/about-us/erisa-advisory-council/2006- regulation inadequately responded to the Executive especially the Treasury Department, prudent-investment-process. Order 13847, because the proposal focused on IRS, and SEC.12 Plan administrators and 14 See GAO–14–92, Private Pensions: Clarity of delivery, as opposed to other methods of improving service providers may have to comply Required Reports and Disclosures Could Be the effectiveness of disclosures. The Department Improved, p. 40, GAO (Nov. 2013), https:// does not agree with these commenters. At the with other federal and state www.gao.gov/assets/660/659211.pdf. outset, the Executive Order does not require the requirements in administering their 15 For example, the Setting Every Community Up Department to issue any proposed or final rule, but plans, and commenters therefore for Retirement Enhancement Act of 2019, enacted only to review policies and, if warranted, ‘‘consider encouraged as much coordination as December 20, 2019, Public Law 116–94 (‘‘SECURE proposing appropriate regulations or guidance.’’ Id. Act’’), reflects Congressional interest in expanding section 2(c). The Executive Order also does not possible to limit the regulatory burden electronic delivery of ERISA disclosures and other create any enforceable rights against the that may result from inconsistent information. Specifically, section 101(c) of the Department. See id. section 3(c). Regardless, the standards. SECURE Act, which amended section 3 of ERISA, Department is confident that the new safe harbor requires the terms of a pooled employer plan to substantially responds to both prongs of the The Department also met with provide that certain disclosures and other Executive Order. As discussed in the Regulatory stakeholders and reviewed recent information may be provided in electronic form. Impact Analysis section of this document, a notice- studies and policy and economic See also Joint Committee on Taxation, Technical and-access framework will significantly reduce plan Explanation of H.R. 4, the ‘‘Pension Protection Act costs. Further, a notice-and-access framework also analyses concerning disclosure of 2006,’’ as Passed by the House on July 28, 2006, facilitates, among other things, interactivity, just-in- practices, as well as changes in internet and as considered by the Senate on Aug. 3, 2006 time notifications, layered or nested information, access and usage across different (JCX–38–06), Aug. 3, 2006 (regulations relating to word and number searching, engagement populations. Entities such as the ERISA the furnishing of pension benefit statements, ‘‘could monitoring, anytime or anywhere access, and permit current benefit statements to be provided on potentially improved visuals, tutorials, assistive a continuous basis through a secure plan website technology for those with disabilities, and 10 The Department received approximately 78 for a participant or beneficiary who has access to translation software, even though this rule does not comments on the 2011 RFI, which are available at the website’’); Secretary of Labor’s 2018 Testimony mandate such practices. These features may be used https://www.dol.gov/agencies/ebsa/laws-and- before the Senate Appropriations Subcommittees on to improve participants’ and beneficiaries’ regulations/rules-and-regulations/public- Labor, Health and Human Services, Education, disclosure experiences. Further, the RFI (published comments/1210-AB50. Review of the FY 2019 Dept. of Labor Budget with the proposed rule) solicited information, data, 11 84 FR 56894, at 56897 et seq. Request, Senate, 115th Cong. (April 12, 2018), and ideas on additional measures (beyond the 12 One commenter recommended that the https://www.appropriations.senate.gov/hearings/ electronic delivery safe harbor in 29 CFR Department coordinate with the Federal review-of-the-fy2019-dept-of-labor-budget-request; 2520.104b–31) that the Department could take in Communications Commission (FCC) to ensure that and 2017 and 2018 legislative activity concerning the future (either as part of finalizing the proposal the use of smartphones to comply with this rule the Receiving Electronic Statements to Improve in this document, or a separate regulatory or will not conflict with FCC guidance. The FCC was Retiree Earnings Act (RETIRE) Act, at H.R. 4610 appropriate guidance initiative) to improve the included as part of the Executive Order 12866 (Dec. 11, 2017) and S. 3795 (Dec. 19, 2018). effectiveness of ERISA disclosures, especially with review process and raised no objection to the 16 E.O. 13847, Strengthening Retirement Security respect to design and content of ERISA disclosures. requirements of this final rule. in America, 83 FR 45321 (Sept. 6, 2018). 19 84 FR 56894 at 56897, 56898.

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Department to allow plan administrators (3) Purpose of Regulatory Action • A 2015 survey of retirement plan to rely on this standard, which they The Department’s principal objective participants’ online habits indicated generally interpret as more flexible than in finalizing this rule is to carefully that 99 percent reported having internet the Department’s 2002 safe harbor, update, based on a comprehensive access at home or work, and 88 percent when furnishing ERISA disclosures.20 public record, ERISA’s electronic of respondents reported accessing the The Department has, in limited internet on a daily basis.27 delivery rules for required disclosures to • circumstances and pursuant to better leverage ongoing improvements A 2015 report observed that temporary guidance, allowed plan in online and mobile-based technology smartphones are used for much more administrators to rely on the Treasury and communications and to provide a than calling, texting, or basic internet Department’s electronic media structure that will be appealing to, and browsing. Based on surveys, the report regulation for applicable notices at 26 workable for, today’s workers. In doing notes that 62 percent of smartphone CFR 1.401(a)–21(c) as an alternative to so, the Department believes the owners have used their smartphones in reliance on the 2002 safe harbor.21 In framework of this final rule strikes an the past year to look up information about a health condition; 57 percent, to light of Executive Order 13847 requiring appropriate balance between competing do online banking; 44 percent, to look consultation with the Treasury policy goals—on the one hand taking up real estate listings; 43 percent, to Department, the preamble to the advantage of the innovations and look up information about a job; 40 proposal explained that the reduced costs that may be achieved through enhanced use of electronic percent, to look up government services Department’s new proposed safe harbor or information; 30 percent, to take a was intended to align with the Treasury communication, and on the other hand ensuring suitable safeguards for class or find education content; and 18 Department’s electronic media percent, to submit a job application.28 regulation. The Department invited participants and beneficiaries who may The Department believes that these interested parties to share their views on be less ready to move to electronic communication (or who simply prefer trends have continued to the present whether this objective is desirable and and will into the future, increasing the what other steps might be needed to paper). The final rule reflects the number of individuals for whom achieve it. Commenters consistently Department’s reliance on a wide variety electronic delivery of ERISA disclosures took the position that it was unclear of sources of evidence concerning is appropriate or preferred. whether an ‘‘intention to align’’ meant individuals’ access to, and use of, that a plan administrator’s use of the (4) 2019 Proposed Regulation and electronic media in the United States: Request for Information notice-and-access framework in the • A 2019 survey found that 90 proposal for Code disclosures would percent of U.S. adults use the internet, In October 2019, the Department satisfy the applicable Treasury representing a substantial increase from published in the Federal Register a Department electronic media 2000 when 52 percent of U.S. adults proposed rule and RFI intended to regulations. Commenters encouraged reported using the internet.23 expand the methods by which required the Department to obtain confirmation • A 2017 survey by the U.S. Census ERISA disclosures may be furnished of this position from the Treasury Bureau estimated that 87 percent of the electronically.29 The proposal would Department to eliminate any U.S. population lives in a home with a allow plan administrators who satisfy uncertainty.22 The Department provided broadband internet subscription.24 certain conditions to notify participants these comments to the Treasury • A 2019 survey found that among and beneficiaries that certain Department for its consideration. The non-broadband users, 45 percent cite disclosures will be made available on a Treasury Department and the IRS have their smartphone as a reason for not website, while preserving the right of indicated that they intend to issue subscribing to high-speed internet these individuals to opt out of electronic additional guidance relating to the use service at home.25 delivery and to request paper copies of • of electronic delivery for participant A 2018 study concluded that 93 disclosures. The Department invited notices. This final rule is considered to percent of households owning defined interested persons to submit comments be an Executive Order 13771 contribution accounts had access to, and on the proposed rule and RFI and, in 26 deregulatory action. Details on the used, the internet in 2016. response to this invitation, the Department received 257 written estimated cost savings of this final rule 23 Monica Anderson, Andrew Perrin, et al, 10% comments from a variety of parties, can be found in the Regulatory Impact of Americans don’t use the internet. Who are they?, including plan sponsors and fiduciaries, Analysis, below. Pew Research Center (Apr. 22, 2019). Available at https://www.pewresearch.org/fact-tank/2019/04/22/ plan service and investment providers, some-americans-dont-use-the-internet-who-are- and employee benefit plan and 20 For example, in comments submitted to the they/. participant representatives, as well as ERISA Advisory Council in 2017, the Department 24 ‘‘Types of internet Subscriptions by Selected was encouraged to adopt the Treasury Department’s 210 submissions in response to a Characteristics,’’ U.S. Census Bureau American approach. See Groom Law Group, statement to the Community Survey 1-Year Estimates (Table S2802) petition. These comments are available ERISA Advisory Council, June 7, 2017, p. 4, (2017). for review on the ‘‘Public Comments’’ available at https://www.dol.gov/sites/dolgov/files/ 25 See Monica Anderson, Mobile Technology and page under the ‘‘Laws and Regulations’’ EBSA/about-ebsa/about-us/erisa-advisory-council/ Home Broadband 2019, Pew Research Center (June 2017-mandated-disclosure-for-retirement-plans- tab of the Department’s Employee 13, 2019), https://www.pewresearch.org/internet/ levine-and-winters-written-statement-06-07.pdf. wp-content/uploads/sites/9/2019/06/PI_ 27 21 See, e.g., Field Assistance Bulletin No. 2006– 2019.06.13_Mobile-Technology-and-Home- 2015 Telephone Survey Conducted by 03 (Dec. 20, 2006), providing for ‘‘the furnishing of Broadband_FINAL2.pdf. Greenwald & Associates for the SPARK Institute. pension benefit statements in accordance with the 26 Peter Swire and DeBrae Kennedy-May, Improving Outcomes with Electronic Delivery of provisions of [26 CFR ] 1.401(a)–21, as good faith ‘‘Delivering ERISA Disclosure for Defined Retirement Plan Documents, Quantria Strategies, compliance with the requirement to furnish Contribution Plans: Why the Time has Come to (June 2015), https://www.sparkinstitute.org/content- pension benefit statements to participants and files/improving_outcomes_with_electronic_ Prefer Electronic Delivery—2018 Update,’’ (April _ _ _ _ beneficiaries’’ under ERISA. 2018), p. 19., See Also ICI Research Perspective, delivery of retirement plan documents.pdf. 22 A few commenters suggested that the Treasury ‘‘Ownership of Mutual Funds, Shareholder 28 Aaron Smith, Smartphone Use in 2015, Pew Department also should explicitly adopt a notice- Sentiment, and Use of the internet, 2018’’ Research Center, (April 1, 2015), https:// and-access framework. The Department provided (November 2018), finding among households with www.pewresearch.org/internet/2015/04/01/us- these comments to the Treasury Department for its defined contribution plans, 92% had access to the smartphone-use-in-2015/. consideration. internet in 2016 and 93% had access in 2018. 29 84 FR 56894 (Oct. 23, 2019).

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Benefits Security Administration regulatory safe harbor that provides a The principal argument of these website.30 This Notice includes a new, optional method for compliance commenters against the proposal is that detailed discussion of the provisions of with ERISA’s general standard for some participants and beneficiaries lack the final rule, the public comments furnishing or delivering disclosures to reasonable access to the internet and received by the Department, and how participants and beneficiaries. A others simply prefer paper, and the these comments impacted the number of commenters on the proposed proposed rule, if finalized, would fail to Department’s decision-making when rule asked about the relationship adequately protect the interests of both adopting the final rule. between the new safe harbor and the categories of individuals. The The Department also issued the RFI existing 2002 electronic delivery safe Department disagrees with this on electronic disclosure based on the harbor. Some commenters indicated argument. The statistics cited above, Department’s conclusion, at the time the satisfaction with the existing safe under the heading ‘‘Purpose of proposed rule was published, that harbor. The new safe harbor is an Regulatory Action,’’ show nearly further information from stakeholders is additional method of delivery and does universal access to the internet among necessary before proposing any not substantively change the 2002 safe individuals who participate in an ERISA substantive regulatory additions, harbor.32 Plan administrators, therefore, covered plan. These statistics also deletions, or changes to ERISA’s have additional flexibility with the rule demonstrate significant and upward disclosures themselves, as opposed to in selecting the electronic delivery trends in both access to, and usage of, changes in the means of delivery for method that works best for the plan and the internet by individuals covered by such disclosures. The RFI, which was its participants and beneficiaries. Plan ERISA plans, including for banking, included in the preamble to the administrators who wish to continue to research, and other non-browsing proposed rule (as opposed to being a rely on the 2002 safe harbor for functions. Despite these statistics, stand-alone document), contained a electronic delivery, or to furnish paper however, the Department understands series of questions to elicit views from documents by hand-delivery or by mail, that some people prefer paper all interested parties on additional ways can continue doing so. documents for a variety of legitimate to improve the usefulness and Most commenters on the rule, as a personal reasons, including improved effectiveness of ERISA disclosures, for general matter, believe that the new reading comprehension, distrust of example with respect to the design or framework is a welcome addition to the electronic storage solutions, computer content of disclosures. The Department 2002 safe harbor, which they argue is illiteracy, difficulty navigating websites, is analyzing responses to the RFI to difficult for them to satisfy with respect username and password fatigue or determine whether regulatory or other to many participants and beneficiaries. forgetfulness, and the cost of computer action, in addition to today’s final rule In support of this position, these hardware and establishing and on electronic delivery of disclosures, commenters cited with approval the maintaining access to the internet or should be taken to further enhance the many prior recommendations of the managing files electronically. The final 31 effectiveness of ERISA’s disclosures. ERISA Advisory Council, the U.S. rule, therefore, honors the preference of B. Final Rule—Alternative Method for Government Accountability Office, and these individuals by including several Disclosure Through Electronic Media other parties.33 These commenters also key provisions to ensure that if covered individuals desire paper documents, The Department is amending part argue that electronic disclosure is both feasible and preferred; that paper plans must accommodate these 2520 by adding a new section, individuals with minimal friction. The § 2520.104b–31, entitled ‘‘Alternative disclosure is very costly; that participants’ disclosure experiences can first, and perhaps most important, of method for disclosure through these conditions in the final rule is the electronic media.’’ This section is a be improved online; that data obtained online enables plans to improve provision that guarantees covered disclosures; that online activity may individuals a right to request and 30 https://www.dol.gov/agencies/ebsa/laws-and- receive paper copies of specific covered regulations/rules-and-regulations/public- improve participants’ savings rates and comments/1210-AB90. A few commenters on the retirement outcomes; that participants documents or to globally opt out of proposal requested an extension, arguing that the can access information online at any electronic delivery altogether. This 30-day comment period for the proposed rule was provision alone addresses commenters’ unreasonable and insufficient to adequately address time; and that web-based disclosures have the capacity to serve diverse major concerns with a plan the many complex issues presented by the proposal. administrator’s decision to change the One commenter further requested that the populations better than traditional Department hold a hearing on the proposal prior to paper disclosures. default mode of delivery from paper to issuing final guidance. The Department declined electronic media. Second, not only are these requests, in part because so few commenters Commenters who object to the new safe harbor, on the whole, believe that plan administrators prohibited from raised the objections, and also because most issues charging covered individuals a fee in relevant to electronic disclosure have been analyzed the 2002 safe harbor is sufficient on its and reviewed by the Department and the public for own and is a preferable rule because it connection with their exercise of these many years, especially after the 2011 RFI and retains paper delivery as the default.34 rights, plan administrators also are temporary guidance issued by the Department. A prohibited from having procedurally substantial and comprehensive public record exists, cumbersome or complex processes for supplemented and updated with comments on the 32 In response to comments, non-substantive proposed rule. The Department disagrees that a conforming amendments are being made to the exercising these rights. Thus, a covered public hearing is necessary to supplement an 2002 safe harbor to facilitate the new safe harbor. individual’s decision to receive paper already comprehensive public record. The scope For example, in response to commenters’ requests, disclosures must be respected and and depth of the public record that has been the Department is adding a cross reference to the cannot be met with economic or developed belies arguments that a 30-day comment new safe harbor in paragraph (f) of § 2520.104b–1 period was insufficient. to improve regulatory clarity. Similar conforming procedural hindrances. Finally, the final 31 Review of comments on the RFI also is amendments were made to §§ 2520.101–3(b)(3) and rule mandates that covered individuals responsive to Executive Order 13847, which 2560.503–1. directed the Department to improve the 33 These recommendations also are set forth in the administrators to document all savings attributable effectiveness of plan disclosures, in addition to preamble to the proposed rule. See 84 FR 56899, to their reliance on this safe harbor and apply these exploring reductions in employer costs and 56900. savings directly to participants’ accounts or administrative burden, through expanded use of 34 One of these commenters requested that, to benefits. Such a request is beyond the scope of this electronic delivery. See generally E.O. 13847, 83 FR prevent the misuse of any cost savings attributable safe harbor and ERISA’s disclosure requirements, 45321 (Sept. 6, 2018). to this final rule, the Department require plan which are the subject of this rulemaking.

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receive multiple reminders, on different is critical to the effective carriers offer a landline service that mediums, of these rights. Thus, a implementation of a notice-and-access converts a text message into a voice participant’s initial decision against framework, much like a mailing address message, instead of returning a bounce- opting out of electronic delivery is not is critical to delivery of a paper back notification. ERISA generally permanent and can be revisited with document. The existence of a valid mandates that disclosures be in writing. each reminder or at any time. email address is similarly essential for Thus, the Department does not consider Collectively these three provisions a plan administrator who will deliver receipt of a voice-based message to be protect individuals’ preference for paper ERISA disclosures by complying with operable for purposes of this rule; the by guaranteeing a right to it and by the requirements of new paragraph (k) electronic address must be able to barring plan administrators from of this final rule, which allows plan accept text (rather than audio) imposing unreasonable burdens on administrators to send documents via messaging. To address this concern, the exercising this right. email. The final rule continues to final rule clarifies that an electronic The final rule adopted today is require, as a condition of reliance on the address that will be used to satisfy fundamentally similar to the proposed safe harbor, including the new paragraph (b) for a covered individual rule, although modifications were made paragraph (k), that a plan administrator must be an address at which the to reflect a variety of comments from possess an electronic address that individual may receive and inspect a affected parties. As in the proposal, the enables electronic communication with written NOIA. Plan administrators who final rule establishes a safe harbor for a covered individual. use internet-connected mobile compliance with ERISA’s general The final rule offers plan computing device numbers, as opposed standard for delivery of disclosures to administrators a variety of ways to to email addresses, for example, will participants and beneficiaries.35 The comply with the condition to obtain an have to take steps to confirm with plan general scope of the safe harbor relief is electronic address for each covered participants and beneficiaries, or set forth in paragraph (a) of the final individual. This provision, for example, through other reasonable means, such as rule. Paragraphs (b) through (k) of the is satisfied if the company provides plan using mobile phone carriers’ validator final rule set forth the detailed participants an electronic address services, to distinguish landline conditions to receiving the relief, and because of their employment. This numbers from mobile or similar paragraph (l) contains the effective and requirement also is satisfied if an numbers that enable the receipt and applicability date. The detailed employee provides a personal electronic inspection of written messages. conditions are discussed below along address to the plan administrator or The final rule continues to recognize with public comments on the proposal. plan sponsor, for example, as part of the the validity of employer-assigned The safe harbor applies only to ‘‘covered job application process or on other electronic addresses. Paragraph (b) of individuals’’ and only with respect to human resource documents. In addition, the proposal, in relevant part, provides ‘‘covered documents.’’ Over 10 years, a plan administrator or service provider that ‘‘if an electronic address is assigned the new safe harbor will save plans can request an electronic address in by an employer to an employee for this approximately $3.2 billion net, plan enrollment paperwork or to purpose, the employee is treated as if he annualized to $349 million per year establish a plan participant’s online or she provided the electronic address.’’ (using a 3 percent discount rate).36 access to plan documents and account The proposal specifically solicited information. comments on whether this provision of (1) Covered Individual A few commenters raised a pragmatic the proposal, as distinguished from the Paragraph (b) of the final safe harbor concern with the use of electronic provision authorizing participants to defines a ‘‘covered individual’’ for addresses that are phone numbers (as affirmatively provide a personal purposes of the rule as a participant, opposed to an email, for instance). They electronic address to receive covered beneficiary, or other individual entitled asked what would happen if a notice of documents, should impose additional or to covered documents and who—when internet availability (hereinafter different conditions to ensure that he or she begins participating in the ‘‘NOIA’’) inadvertently is sent to a participants receive their disclosures. plan, as a condition of employment, or landline number, rather than a Many commenters supported the otherwise—provides the ‘‘employer, smartphone or similar number. It is not proposal’s recognition of the validity of plan sponsor, or administrator (or an always readily apparent, given a ten- employer-assigned electronic addresses. appropriate designee of any of the digit phone number, whether the These commenters believe the provision foregoing)’’ with an electronic address. number belongs to a landline or not. is a common-sense technique to This includes an email address or Exacerbating this potential problem, a facilitate default electronic delivery: internet-connected mobile- computing- plan administrator who sends an NOIA Employers routinely assign employees device (e.g., smartphone) number, and is to a landline may not receive a bounce- electronic addresses as part of their intended to be broad enough to back or any other notification that the employment, for a variety of business encompass new and changing recipient’s phone address is a landline purposes including human resource technology. that cannot receive text messages. If the management, work-related assignments, The existence of an electronic address plan administrator did receive such a and routine communications. for notification to a covered individual notification, it would trigger the Commenters also noted that the substantive protections in paragraph Department’s 2002 safe harbor allows 35 Commenters have asked about the application (f)(4) of the safe harbor, which require for electronic delivery of disclosures to of ERISA’s fiduciary standards and other statutory a plan administrator to take curative employer-assigned electronic addresses requirements to electronic disclosure in varying steps if the electronic address of a without the affirmative consent of contexts. This safe harbor addresses only a plan administrator’s compliance with ERISA’s standard covered individual is invalid or participants, and called attention to the for the furnishing of covered documents to covered inoperable. The inability of an lack of reported problems or harm to individuals. It neither addresses nor supplants more electronic address to receive, for participants caused by or attributable to general fiduciary or other statutory obligations example, a text message that is intended that provision in the 2002 safe harbor. under ERISA. 36 See the Regulatory Impact Analysis in Section to be an NOIA, would mean that the Other commenters, however, raised D of this preamble for a fuller discussion of net cost address is in fact inoperable for objections to the proposal’s recognition savings. purposes of the rule. Some phone of the validity of employer-assigned

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electronic addresses. These commenters provider would use commercial locator generally. In this regard, they argue, were particularly concerned about the services or similar people-finder tools to multiemployer plans are very different language in the proposal that permitted acquire electronic addresses of plan from single-employer plans. The an employer-assigned address to be participants. The Department agrees, Department confirms for affected parties created solely for purposes of using the and paragraph (b) of the final rule that the final rule’s definition of covered proposed safe harbor. These continues to prohibit plan individual in paragraph (b) is intended commenters were concerned that administrators or their service providers to include multiemployer plan ineffective disclosure will result if from assigning electronic addresses participants. This necessarily follows employers, or service providers or third- under the new safe harbor. To ensure from paragraph (c) of the final rule, party technology firms hired by effective access to electronic media, which defines the scope of ‘‘covered employers, create and assign electronic paragraph (b) confers this authority only documents’’ to include all pension addresses with unclear or unfamiliar on an employer with respect to its benefit plans under ERISA. If the URL components solely to comply with employees. Accordingly, in response to Department had intended to exclude the new safe harbor. In these one commenter’s request for from this safe harbor a subset of pension circumstances, such attenuated or clarification, a plan administrator could plans, such as multiemployer plans, the ambiguous electronic addresses (e.g., not use a commercial locator service to exclusion would have been set forth in email accounts) may be unfamiliar to, acquire, and then use, personal paragraph (c) of the final rule. ignored, overlooked, or forgotten by electronic addresses under this safe Nevertheless, the Department has covered individuals. One commenter harbor. slightly rephrased paragraph (b) to asserted that an employer-assigned Similarly, a few commenters raised clarify that providing an electronic electronic address for purposes of this concerns about application of the address as a condition of employment is rule could, in some jurisdictions, proposed safe harbor to spouses, only one way that an individual might constitute a breach of fiduciary duty. divorced spouses, and other supply an electronic address. The Based on these concerns, the beneficiaries who may be entitled to individual might supply it as part of Department eliminated the phrase ‘‘for disclosures under ERISA. Specifically, their initial participation in the plan, or this purpose’’ from the final rule. these commenters believe that it would they might supply it otherwise: Through Paragraph (b) now provides that be inappropriate for employers to assign other means and for other reasons. In participants will be treated as if they electronic addresses for disclosure of addition, in response to one provided an electronic address to an covered documents to these individuals, commenter’s question regarding the employer if the electronic address is because, unlike employees participating source of an electronic address, the assigned by an employer to an employee in an employer’s plan, spouses and definition of ‘‘covered individual’’ ‘‘for employment-related purposes that other beneficiaries may not have any includes multiemployer plan include but are not limited to the real relationship with the employer. The participants who provide their delivery of covered documents.’’ Thus, Department agrees with this concern. electronic addresses directly to the plan to satisfy the rule’s definition of a Although paragraph (b) of the final rule administrator, as well as plan covered individual, the electronic allows employers to assign electronic participants whose personal or address assigned by an employer for an addresses for their employees, employer-assigned electronic address is employee must be assigned for some employers cannot assign electronic provided to the plan administrator by an employment-related purpose other than addresses for non-employee spouses or employer. the delivery of covered documents other beneficiaries of their plans’ under the new safe harbor. An employer participants. For a spouse or other (2) Covered Documents could not, for example, establish for an beneficiary that is entitled to ERISA (i) Employee Pension Benefit Plans employee a personal electronic address disclosures to be a covered individual (e.g., a Google or Yahoo email account) for purposes of the final rule, the spouse Paragraph (c) of the proposal defined that will be used by the plan’s or other beneficiary must affirmatively the ‘‘covered documents’’ to which the administrator only to send notices provide (or must have provided) the rule would apply. It provided that the required by this safe harbor. The employer, plan sponsor, or safe harbor may be used by the employer-assigned address must have administrator (or appropriate designee) administrator of a pension benefit plan, an employment-related purpose other with an electronic address; otherwise as defined in ERISA section 3(2), to than to comply with the safe harbor. the plan administrator cannot furnish furnish any document that the Whether such an assignment meets disclosures to these individuals administrator is required to furnish to ERISA’s furnishing standard is a matter pursuant to this rule. participants and beneficiaries pursuant to be determined based on the facts and The definition of ‘‘covered to Title I of ERISA, except for any circumstances of the particular individual’’ in the final rule does not document that must be furnished only situation. exclude participants in multiemployer upon request. The proposal clarified Although the safe harbor recognizes plans. Commenters representing that a plan administrator would not be the validity of employer-assigned multiemployer plans requested required to furnish all of these electronic addresses, it does not permit confirmation that these individuals documents, as applicable for a plan administrators to assign them. A could be covered individuals for particular plan, pursuant to the safe few commenters explicitly agreed with purposes of paragraph (b) of the rule. harbor if the plan administrator prefers the Department’s concern, expressed in Their concern stemmed from the a different method of furnishing for the preamble to the proposal, about the proposal’s use of the phrase ‘‘as a some of the documents. The Department assignment of electronic addresses by condition of employment,’’ as a requested comments generally as to plan administrators and third-party predicate for providing the plan whether the scope of covered service providers. These believe that administrator an electronic address documents is appropriate, and misuse could result from allowing these because, according to the commenters, specifically whether certain employee individuals and entities to assign multiemployer plan sponsors do not pension benefit plan disclosures are electronic addresses, for example, citing have the ability to establish employment better suited for such electronic a practice under which a plan’s service conditions, unlike plan sponsors disclosure.

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Commenters generally supported the covered individuals).38 The 2002 safe formal process of doing so. These scope of the definition of covered harbor, if satisfied, remains available for commenters argued that there is no documents as including disclosures for plan administrators to furnish ERISA sound legal or policy basis for excluding pension benefit plans. The final rule disclosures that are excluded from this welfare plans, and that significant does, however, include two minor safe harbor. additional reductions in regulatory costs and burdens would follow if the safe revisions. First, in response to (ii) Employee Welfare Benefit Plans numerous commenters, the Department harbor were expanded to cover welfare The proposed safe harbor did not added the words ‘‘or information’’ to benefit plans, especially group health apply to employee welfare benefit plans, this paragraph to clarify that certain plans. A few of these commenters as defined in section 3(1) of ERISA, estimated that even extending the safe ‘‘information’’ required to be disclosed such as plans providing disability harbor only to routine health care pursuant to 29 CFR 2550.404a–5, the benefits or group health plans. The denials (e.g., ‘‘Explanation of Benefits’’ Department’s participant-level fee Department instead reserved paragraph or ‘‘EOBs’’) would save millions of disclosure regulation, is covered by the (c)(2) of the proposal so that it could dollars annually for health plan final rule. Second, the Department continue to study the future application administration. added the word ‘‘only’’ to this of the new safe harbor to documents The Department understands that paragraph to clarify the scope of the that must be furnished to participants there could be significant cost savings if definition’s exception for documents and beneficiaries of employee welfare the safe harbor were extended to cover that must be furnished upon request benefit plans. In the proposal, the welfare plan disclosures. At the same (the exception now applies to Department noted that this reservation time, such an extension warrants careful documents ‘‘that must be furnished only accords with Executive Order 13847, consideration and analysis that goes upon request,’’ emphasis added). which focuses the Department’s review beyond the scope of this final rule. The Commenters disagreed about this on retirement plan disclosures. The Department, therefore, has decided not exception. Some commenters argued Department further explained that it to expand the scope of the final rule to cover welfare benefit plans at this time. that the final rule should not exempt does not interpret the Order’s directive The Department will continue exploring documents that are available upon as limiting the Department’s ability to take future action with respect to whether, and under what request by a covered individual, circumstances, to extend the safe harbor particularly if the individual agrees or employee welfare benefit plans, especially to the extent similar policy in the final rule to welfare benefit plans, has not objected to the rule’s method for goals, including the reduction of plan and may undertake rulemaking in the delivery. Other commenters did not administrative costs and improvement future. object to the exception, but requested of disclosures’ effectiveness, may be that it be revised to ensure that the safe (3) Notice of Internet Availability achieved. The Department noted in the harbor’s exclusion from covered preamble of the proposal that welfare As a general rule, the proposal documents is limited to documents that plan disclosures, such as group health required that plan administrators are available only upon request. Under plan disclosures, may raise different furnish to each covered individual an ERISA, some documents must be considerations, such as pre-service NOIA for each covered document in furnished automatically and others only claims review and access to emergency accordance with the requirements of upon request by an eligible person.37 and urgent health care. Moreover, the this section. A special rule, in paragraph However, these commenters point out Department shares interpretive (i) and discussed below, allowed plan that in certain cases (including pursuant jurisdiction over many group health administrators to combine the content of to this safe harbor) participants may plan disclosures with the Treasury the required notices for certain covered request copies of many different Department and the Department of documents. Paragraph (d) of the final documents—even documents that must Health and Human Services. In rule, as in the proposal, continues to be furnished automatically, such as the considering any possible new electronic require that plan administrators furnish summary plan description (SPD). The delivery safe harbor for group health an NOIA and sets forth the conditions Department’s intention, as reflected in plan disclosures in the future, the for satisfying this requirement, as the preamble to the proposed regulation Department would consult with these modified to reflect the Department’s and unchanged for purposes of the final other Departments. response to commenters’ views on the notice requirement. rule, is that the exception applies to Many commenters agreed with the documents that are furnished only upon Department’s reasoning as set forth in (i) Timing of Notice of Internet request (i.e., the exception does not the preamble to the proposed rule. Availability These commenters urged the apply to, and therefore the final rule Paragraph (d)(2) of the final rule Department not to include welfare plans includes as covered documents, continues to provide that the plan in the final rule, the most common documents for which the plan administrator must furnish an NOIA at reason being that welfare plans present administrator has an affirmative the time the covered document is made unique issues as compared to other obligation to furnish but that are also, available on the website described in types of employee benefit plans. These for various reasons, requested by paragraph (e). One commenter argued commenters also acknowledged the that, due to the flexibility of online necessity of the tri-agency consultation 37 See, e.g., 29 U.S.C. 1024(b)(4) for the general posting, covered documents should be process for any such rule. requirement that upon written request of any posted earlier than required by law, for Other commenters, by contrast, participant or beneficiary, plan administrators must example that any disclosures affecting furnish plan documents including the latest encouraged the Department to expand covered individuals’ benefits should be updated SPD, latest annual report, any terminal the final rule to apply to disclosures for report, the bargaining agreement, trust agreement, posted as soon as reasonably possible welfare plans or begin immediately the contract, or other instruments under which the plan after the decision affecting benefits is is established or operated. See also 29 U.S.C. 1021(k) with respect to multiemployer plan 38 84 FR 56894, 56901 n. 63 (‘‘The proposed safe made. The Department disagrees that it information provided to participants and harbor does not apply to documents that are would be appropriate, in a rule focused beneficiaries upon written request. furnished only upon request.’’). on the acceptable methods for

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delivering required ERISA disclosures, (ii) Content of Notice of Internet only minor revision from the proposed to alter the timing requirements for the Availability rule. As in paragraph (d)(3)(i) of the disclosures themselves. As set forth in Paragraph (d)(3)(i) through (vii) of the proposal, now (d)(3)(i)(A) in the final the preamble to the proposal, the rule is proposal listed the content requirements rule, the NOIA must include a not intended to alter the substance or for the NOIA. Paragraph (d)(3)(i) of the prominent statement—for example as a timing of any of ERISA’s required proposal required a prominent title, legend, or subject line—that reads: disclosures. The rule merely expands statement, for example as a title, legend, ‘‘Disclosure About Your Retirement the possible delivery methods for or subject line that reads, ‘‘Disclosure Plan.’’ Commenters did not object to disclosures. ERISA and the regulations About Your Retirement Plan.’’ this statement or its prominence. The thereunder include thoughtfully Paragraph (d)(3)(ii) required this statement required by paragraph prescribed timelines for each required statement: ‘‘Important information about (d)(3)(ii) of the proposal, now (d)(3)(i)(B) disclosure; the Department maintains your retirement plan is available at the in the final rule, has been revised to be that any changes to those substantive, website address below. Please review technologically neutral. As finalized, legal standards would have to be made this information.’’ Paragraph (d)(3)(iii) the NOIA must include the following on a disclosure-by-disclosure basis, required a brief description of the statement: ‘‘Important information about subject to the regulatory process, covered document. Paragraph (d)(3)(iv) your retirement plan is now available. including public notice and comment. required ‘‘the internet website address Please review this information.’’ A few The Department does agree with this where the covered document is commenters disagreed with the use of commenter, however, that, for similar available.’’ Paragraph (d)(3)(v) required the word ‘‘Important’’ and the reasons, it would not be necessary or a statement of the right to request and Department’s provision of required appropriate to include any extensions to obtain a paper version of the covered language for this statement. As one the timing requirements for covered document, free of charge, and an commenter explained, the word documents that are posted online. explanation of how to exercise this ‘‘important’’ may become meaningless as NOIAs are regularly received. The As in the proposal, the final rule right. Paragraph (d)(3)(vi) required a statement of the right to opt out of Department disagrees that the use of the continues to allow plan administrators word ‘‘Important’’ is problematic. Even to furnish a combined NOIA each plan receiving covered documents electronically, and an explanation of as covered individuals become year for more than one covered accustomed to this framework for document. If a combined NOIA was how to exercise this right. Finally, paragraph (d)(3)(vii) required a disclosure and receive notices over furnished in the prior plan year, the time, there is no harm in highlighting next plan year’s combined NOIA must telephone number to contact the plan administrator or other designated what the Department believes to be be furnished no more than 14 months ‘‘important’’ retirement plan later. As discussed below, however, the representative of the plan. The Department requested comments information; federal law, after all, does covered documents that may be require disclosure of this information combined pursuant to paragraph (i) of on these content requirements and whether the NOIA would adequately for a reason. The Department also is not the final rule have changed. The final persuaded that the rule’s required rule continues to provide plan serve its intended purpose, which is to provide very concise and clear language for the statement in (d)(3)(i)(B) administrators with a 14-month period is problematic, especially as revised to to comply with the annual NOIA notification to covered individuals about covered documents available on more broadly apply to different requirement. The Department does not electronic delivery methods. Very few want plan administrators to have to the website. As a general matter, some commenters believe that the content commenters objected to this language, push back the date of furnishing from requirements are excessive, while others and a number of commenters expressly year to year to avoid the risk that they merely stated that the Department stated that they would not object to run afoul of a strict 12-month should be less prescriptive about the model language for some of the safe requirement, and the Department content requirements, and allow plan harbor’s notice requirements. The acknowledges that actual disclosure administrators greater flexibility for statement is brief and straightforward, dates can vary slightly from year to year. innovation. Commenters also provided and plan administrators often prefer to The two-month grace period should significant feedback on specific content have specific guidance when making offer sufficient flexibility without provisions in the proposal. Although such statements to reduce risk that compromising individuals’ receipt of an not all of these suggestions were language drafted at their discretion will NOIA on a periodic, essentially annual, implemented in the final rule, the be insufficient. basis. The Department did not receive Department is persuaded by The Department has decided to make any comments disagreeing with this commenters that its intention for the a few revisions to paragraph (d)(3)(iii) of approach or arguing that different NOIA may be better achieved by the proposal, now (d)(3)(i)(C), in timing requirements would be adopting some revisions to the NOIA’s response to public comments. An NOIA, preferable. content requirements. Due to these under the final rule, must include ‘‘[a]n The Department also reminds plan revisions, the Department also identification of the covered document administrators that if they choose to restructured paragraph (d)(3), making by name (for example, a statement that furnish a consolidated NOIA once a year non-substantive changes to the lettering reads: ‘your Quarterly Benefit Statement under paragraph (i) of the rule, doing so and numbering of subsections. The is now available’) and a brief will not change the date on which the following paragraphs set forth description of the covered document if covered documents must be made commenters’ views with respect to each identification only by name would not available on the website. Each covered of the specific NOIA content provisions reasonably convey the nature of the document described in the consolidated and, where applicable, changes that covered document.’’ Many commenters NOIA must be made available on the have been made for purposes of the final on the proposal requested additional website no later than the date it must be rule. guidance on what would be expected as furnished to participants and The Department has adopted the first a ‘‘brief description’’ of a covered beneficiaries by law. two content requirements today with document and worried that this

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requirement could result in too much A few commenters addressed the information, but did not offer specific information on what is supposed to be standard in paragraph (d)(3)(iv) of the commentary on security or privacy a very short notice. Suggestions proposal, now (d)(3)(i)(D), that the language that should be required. included requiring that the brief required internet website address must Following its review of commenters’ description be limited to no more than be ‘‘sufficiently specific’’ to provide views, the Department decided to retain a sentence or two, or even consolidating ready access to the covered document the ‘‘sufficiently specific’’ standard, the first few content requirements and (or, in the case of a combined NOIA, which now applies whether the notice merely requiring identification of the covered documents).40 A website includes a website address or a covered document. The Department address (or hyperlink) will satisfy this hyperlink to such address, and made agrees that it may not always be requirement if it leads the covered other non-substantive revisions to necessary, to the extent the nature of a individual directly to the covered simplify the paragraph. covered document is clear by its name, document. A website address (or The next two content requirements to include a brief description and that hyperlink) also will satisfy the proposed in paragraphs (d)(3)(v) and inconsistent application of the standard ‘‘sufficiently specific’’ standard if the (vi), which are now contained in could result in longer, and more address leads the covered individual to paragraphs (d)(3)(i)(E) and (F) of the complex, NOIAs. The final rule requires a login page that provides, or final rule, have been adopted with only a brief description only when immediately after a covered individual minor amendment to clarify that identifying a covered document by logs on provides, a prominent link to requests for a specific paper version, name would not reasonably convey the the covered document. Most and requests to opt out are both fulfilled nature of the covered document. commenters did not respond with free of charge. An NOIA must include Otherwise, only identification of the suggestions for how to improve the a statement of the right to request and covered document by name is required. ‘‘sufficiently specific’’ standard, except obtain a paper version of the covered For example, an NOIA for a quarterly for requesting minor clarifications. The document, free of charge, and an benefit statement ordinarily would not very few commenters that did address explanation of how to exercise this right need a brief description. Quarterly the standard disagreed with each other (under (d)(3)(i)(E)); and a statement of benefit statements are furnished every on the problem; for example, one the right, free of charge, to opt out of three months and their content, which commenter believed that the electronic delivery and receive only includes periodic personalized benefit ‘‘sufficiently specific’’ standard is too paper versions of covered documents, account information for a covered prescriptive and should allow more and an explanation of how to exercise individual, generally is well understood flexibility, especially to accommodate this right (under (d)(3)(i)(F)). by individuals. Alternatively, the future technology, whereas another Commenters overall did not object to Department expects that a plan commenter argued that the standard is requiring that the notice explain administrator furnishing an NOIA for a not sufficiently protective of covered covered individuals’ rights to request blackout notice would need to include individuals and that the notice should paper or opt out of electronic delivery. a brief description to comply with this take individuals straight to the The Department continues to believe requirement. Blackout notices typically disclosure (following a secure login, as these are vitally important and are not furnished on a recurring basis, applicable). Similarly, very few protective rights for covered individuals and the circumstances surrounding the commenters addressed whether and is not persuaded by the one provision of a blackout notice may not additional or different security commenter who requested that these be clear to many covered individuals. It procedures or information about login statements be removed. A couple of is not unlikely, for example, that some or similar procedures should be commenters suggested that these rights covered individuals will have never included in the notice. Most believe this should be ‘‘prominently’’ displayed and before received a blackout notice. The additional information will only further that the notice should include detailed Department believes that these clutter the notice and detract from key instructions about how to opt out and modifications are responsive to information, and that security any timelines for doing so. The commenters’ concerns without procedures and protocols may become Department did not adopt these undercutting the important message quickly outdated. One commenter asked suggestions. Given the very limited NOIAs are intended to convey. the Department to require a separate content of the NOIA, nearly everything Paragraph (d)(3)(iv) of the proposal, notice including login and security arguably is ‘‘prominent,’’ and adding now (d)(3)(i)(D) in the final rule, also more and more content and reflects limited revision in response to not persuaded that hyperlinks should be specifications would only undermine commenters’ questions about whether mandatory; further, it is unclear whether the the intended brevity and simplicity of plan administrators could use a commenter’s suggestion that covered individuals the notice. must be able to hover over defined terms is meant hyperlink on an NOIA, rather than to apply to notices (which are intended to be The final rule includes one additional simply a website address. The concise, clear documents notifying of internet content requirement, in paragraph Department did not intend to limit availability, rather than substance) or more likely to (d)(3)(i)(G), to respond to several NOIAs to including only website the covered documents themselves. This rule is not commenters’ suggestion that covered intended to change substantive requirements of individuals should be made aware that address citations: Plan administrators covered documents, such as the use of (and are encouraged to use hyperlinks that hyperlink capabilities associated with) defined covered documents may not always be take covered individuals directly to a terms. available online. The Department agrees website address. The rule has been 40 See, e.g., 29 CFR 2550.404a–5(d)(v), which that covered individuals would benefit revised explicitly to include similarly requires disclosure of specified from such a warning or reminder, so 39 information at ‘‘[a]n internet website address that is hyperlinks. sufficiently specific to provide participants and that they can take any desired action to beneficiaries access to’’ such information (emphasis print or save covered documents, or 39 The Department did not adopt one added). The Department is not aware of any possibly request a paper copy of a commenter’s recommendation that final guidance evidence that plan administrators need further covered document. As discussed below require hyperlinks or the ability to hover over clarification or that this standard is ineffective. The in detail, plan administrators are not words that previously have been defined. Although proposal nonetheless included, and the final rule the rule now explicitly includes hyperlinks in continues to include, two non-exclusive methods required to maintain covered documents addition to website addresses, the Department is for website access that satisfy this standard. online indefinitely for purposes of

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satisfying this electronic delivery safe commenter on paragraph (d)(3)(vii) of sample models for the Department’s harbor. Thus the final rule now requires the proposal, now (d)(3)(i)(H), argued consideration. Although a few an NOIA to include a cautionary that the notice’s content should be commenters stated that they did not statement that the covered document is expanded to include an explanation that necessarily object to the provision of a not required to be available on the the number may be used for paper and model NOIA, many commenters website for more than one year or, if opt-out requests as well as other responded that a model is not necessary, later, after it is superseded by a questions, with a required response time for example because the NOIA content subsequent version of the covered of no more than 72 hours. Covered and other requirements are sufficiently document. This requirement will ensure individuals will not necessarily be clear, or more explicitly that the that covered individuals understand better informed by, and are more likely Department should not adopt a model, that covered documents will not be to ignore, a long and detailed notice that because, given the large variety in available online indefinitely. Plan they receive repeatedly. The purpose of retirement plan features and designs, a administrators could, for example, draft the NOIA is to highlight for covered model could be insufficiently flexible the cautionary statement in a manner individuals that a retirement plan and ultimately interfere with the ability that encourages covered individuals to document is available online, not to of plan administrators to appropriately print, save, or otherwise preserve become a new and comprehensive prepare NOIAs for their plans.43 The covered documents. disclosure of ERISA rights and public record, therefore, did not A few commenters found paragraph responsibilities in itself. demonstrate a meaningful level of (d)(3)(vii) of the proposal, now Based on additional feedback from interest in having a model NOIA (d)(3)(i)(H), requiring a contact commenters and analysis of the published with the final rule. The telephone number to be deficient, for circumstances that may in fact warrant Department also did not receive any example suggesting that the rule should additional content on an NOIA, sample models from commenters. Given mandate toll-free telephone numbers however, the Department adopted one this overall lack of interest, and in light both for the employer or plan more provision to the final safe harbor of changes made to improve the administrator and for the Department. in paragraph (d)(3)(ii). As opposed to required content of the NOIA in The Department did not adopt a the preceding content requirements for response to commenters’ concerns, the requirement that the telephone number the notice in paragraph (d)(3)(i), the Department has not included a model must be toll-free, because such a information described in paragraph NOIA in the final rule.44 requirement would place a costly and (d)(3)(ii) (ii) is not required. An NOIA furnished pursuant to the safe harbor (iii) Form and Manner of Furnishing unnecessary burden on plan sponsors, Notice of Internet Availability particularly for sponsors of small plans may (but is not required to) contain a that might be located in the vicinity of statement as to whether action by the The Department intends the NOIA to most of their participants without the covered individual is invited or be a succinct, understandable disclosure need for any long-distance calling. required in response to the covered that will convey its importance and Further, the Department is unaware of document and how to take such action, easily call the recipient’s attention to any problems or objections from plan or that no action is required, provided the availability of a covered document. participants with the telephone number that such statement is not inaccurate or With this goal in mind, paragraphs that is required as contact information misleading. The Department included (d)(4)(i) through (iv) of the proposed in the participant-level fee disclosure this new provision because it was rule set forth standards for the form and regulation (which similarly does not persuaded by commenters that covered manner of furnishing the notice. As require a toll-free number).41 In any individuals may find it advantageous to proposed, an NOIA had to first, be event, the safe harbor does not preclude be notified whether some action on their furnished electronically to the address plan administrators from providing (and part is (or is not) invited or required in referred to in paragraph (b) of the including on the NOIA) a toll-free response to the notice. The rule does not proposal; second, contain only the number. The Department was not preclude plan administrators’ discretion content specified in paragraph (d)(3) of persuaded that this final content to include this information, although it the proposal, except that the plan administrator could include pictures, requirement from the proposal should is not required. Plan administrators, logos, or similar design elements, so be revised. Paragraph (d)(3)(i)(H) of the however, must ensure that any long as the design was not inaccurate or final rule continues to require a statement about action that may or must misleading; third, be furnished telephone number to contact the plan be taken, or that no action is needed, is separately from any other documents or administrator or other designated not inaccurate or misleading. For disclosures furnished to covered representative of the plan. example, in the Department’s view, it The Department declined to adopt a would ordinarily be inaccurate and individuals, except as permitted under number of additional content misleading for a plan administrator to paragraph (i) of the proposal (which requirements suggested by some state on an NOIA for a benefits claim addressed the consolidation of certain commenters.42 For example, one denial under section 503 of ERISA that notices of internet availability on an no action is invited or required. Even if annual basis); and fourth, be written in 41 See 29 CFR 2550.404a–5(d)(2)(i)(A). a covered individual chooses to ignore a manner calculated to be understood by 42 Examples of additional statements that the NOIA and not initiate an appeal, a commenters suggested for the NOIA include that it benefits claim denial, by its very nature, 43 One commenter supported the Department’s is the covered individual’s responsibility to notify is an invitation to take action, and development of a model notice, and explained that the plan administrator of a new electronic address; requires such action within a specific to do so properly would require as long as six where historical versions of documents can be months. For the reasons stated herein, however, the obtained; the significance of the covered document timeframe or else the claimant may Department has declined to adopt a model NOIA at and what has changed since the last version; that forfeit a right to a benefit. this time. there will be no retaliation for choosing paper; that Finally, as to the content required for 44 The Department similarly did not adopt a notices and covered documents should be printed the NOIA, the Department requested model for the initial notification required under and saved for personal records; the right to print paragraph (i) of the rule, discussed in detail below. covered documents at an employer’s place of comments on whether affected parties As with the NOIA, commenters did not necessarily business; and the availability of the plan believed that a model NOIA would be object to a model, but there was not consistent or administrator to assist with passwords. useful, and asked that parties submit strong support for a model for either notice.

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the average plan participant. The just by email but by text messages, (d)(4)(i) of the final rule adopts the proposal elaborated on this fourth mobile application notifications, and proposal’s requirement that an NOIA condition, explaining that a notice that future innovations. Alternatively, some must be furnished electronically to the uses short sentences without double commenters requested that the rule be address referred to in paragraph (b) of negatives, everyday words rather than revised to allow plan administrators to the safe harbor. technical and legal terminology, active furnish the NOIA in paper form, or The Department also received more voice, and language that results in a electronic form, based on a specific comments on the requirements Flesch Reading Ease test score of at least determination by the plan of section (d)(4) of the proposal. In 60 would satisfy the fourth administrator. Allowing paper response to paragraph (d)(4)(ii) of the requirement.45 disclosure would, these commenters proposal, limiting the content of the The proposal required that the NOIA explained, somewhat alleviate their NOIA but permitting specified design be furnished by itself. The NOIA concerns about the revocation of FAB elements, a few commenters requested contains important information alerting 2006–03, discussed below in the section clarification that covered individuals covered individuals that retirement plan titled ‘‘Transition Issues.’’ Other will not be forced to wade through what disclosures are available online. This commenters argued that allowing paper are essentially marketing information should not be obscured by would reduce their concern that communications as purported ‘‘design’’ commercial advertisements or even disclosures may not be received by elements that could overtake the actual other ERISA-required disclosures. The covered individuals, winding up in a content of the notice. And more second and third requirements in spam folder or otherwise buried. importantly to these commenters, paragraph (d)(4) of the proposal were The Department notes that, similar to covered individuals should not be intended to achieve this objective. Any the discussion below with respect to the confused by suggestible endorsements additional information or content had to concept of a ‘‘website,’’ the final rule is and advertising. The Department be limited; to permit otherwise would intended to apply to a broad range of appreciates commenters’ concern that have frustrated the Department’s goal of technologies in addition to emails and the content of the required NOIA must a clear, concise notice. To the extent internet browser websites. Indeed, the be clear and direct, and that the NOIA design elements could enhance the Department specifically designed the should not be used as marketing or sales appearance of the NOIA and possibly rule to accommodate future material to the extent the NOIA is increase the likelihood that it would technological innovations that can be prepared by a plan service provider. draw the desired attention of covered used in compliance with the standards However, the Department believes that individuals, however, the proposal did of the safe harbor. By its terms, the rule these concerns are mitigated by the not exclude the use of pictures, logos, does not limit furnishing of the NOIA to requirement in paragraph (d)(4)(ii) that and similar design elements, so long as email; the notice could, for example, be design elements not be inaccurate or the design was not inaccurate or sent by text message. The Department misleading and that the required misleading and the required content did not, however, adopt certain content be clear. The purpose of the was clear. commenters’ suggestion that plan notice is to communicate the Plan administrators must write clear administrators should be able to furnish availability of an online disclosure, and and understandable notices of internet the NOIA in paper form.46 One of the plan administrators are responsible for availability, and to that end the proposal goals in adopting this safe harbor is to ensuring that this purpose is not relied on the standard measure for advance the use of electronic tools to obscured. readability of ERISA disclosures—that enhance the effectiveness of, and reduce Paragraph (d)(4)(iii) of the final rule the annual notice be ‘‘written in a the costs associated with, ERISA requires that an NOIA must be manner calculated to be understood by disclosures. The Department maintains furnished separately from any other the average plan participant.’’ Due to the that it is important for covered documents or disclosures except as concise nature of the NOIA, however, individuals to receive an initial notice, permitted, and discussed below, by paragraph (d)(4)(iv) of the proposal on paper, alerting them that disclosures paragraph (i) of the final rule. Some included additional guidelines for plan will be furnished using different commenters questioned whether the NOIA must be furnished separately if it administrators to satisfy the readability procedures. But after that, the safe requirement, and plan administrators accompanies the covered document harbor will create consistency by were encouraged to apply the plain (e.g., an email notice with an attached requiring plan administrators to language concepts described above PDF version of the covered document); communicate electronically. As to (including the Flesch Reading Ease test). this matter is addressed by the addition ensuring the receipt of electronic The Department incorporated these to the final rule of paragraph (k), notices, the rule includes a specific concepts to further improve individuals’ discussed below, permitting such direct provision in paragraph (f)(4) requiring comprehension of the information on delivery of covered documents. that action be taken in response to the NOIA and to provide plan The Department received significant invalid or inoperable electronic administrators a safe harbor, essentially, commentary on the readability standard addresses. Accordingly, paragraph to satisfy the readability standard for in paragraph (d)(4)(iv) of the proposal purposes of the proposed safe harbor. with its references to short sentences, 46 The Department believes that commenters’ Commenters had a variety of general support for paper NOIAs was due, in part, to the active voice, and the Flesch reading ease observations about the form and manner fact that some plan administrators currently rely on score. Most commenters strenuously by which an NOIA must be furnished. Field Assistance Bulletin 2006–03, which permits objected to the inclusion of these For example, some commenters asked a paper notice, to furnish pension benefit additional, more specific measurements the Department to provide flexibility in statements. The Department understands that for these administrators, reliance on this final rule will to assess the readability of NOIAs. how the notice may be furnished, not require them to modify their procedures with These commenters argued that the respect to notices for benefit statements and Department’s existing standard, 45 See, e.g., general information about this consequently is providing an 18-month transition ‘‘written in a manner calculated to be formula for writing in plain English, at https:// period during which plan administrators can understood by the average plan web.archive.org/web/20160712094308/http:// implement such modifications. FAB 2006–03 and www.mang.canterbury.ac.nz/writing_guide/writing/ the transition period are discussed further below, participant,’’ is sufficient and well flesch.shtml (Rudolf Flesch). under the heading ‘‘Transition Issues.’’ understood. They asserted that, in their

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view, including additional standards, communications.48 Although the with the website may be delegated to particularly standards based on the Department has declined to include the plan service or investment providers or application of a Flesch reading ease proposal’s specific guidelines in the other third parties, as frequently occurs score, would increase the costs of final rule, it will continue to analyze now for other aspects of plan compliance with the safe harbor without readability and other measures in administration. Any such delegation is obvious benefits. Even though the new connection with the responses to the subject to the plan administrator’s standards were proposed as examples of RFI on general disclosure issues that compliance with paragraph (j) of the compliance with the general standard, was published with the proposed rule. safe harbor, ‘‘Reasonable procedures for rather than as independent In the meantime, plan administrators compliance,’’ discussed below, and the requirements, the commenters argued may look to the Department’s SPD plan administrator’s general obligation that there is a good chance the standards regulations for guidance on the meaning as a plan fiduciary under ERISA section would be interpreted as a new legal of ‘‘written in a manner calculated to be 404 to prudently select and monitor standard, not only for this final rule’s understood by the average plan such parties.50 notices but for other ERISA disclosures, participant.’’ 49 A few commenters argued that such as the SPD. The Flesch reading (iv) Standards for Internet Website paragraph (e)(1) of the proposal sets a ease score was especially problematic higher, strict liability, standard for plan The proposed safe harbor included for commenters, who suggested that administrators that is not appropriate. minimum standards concerning the perhaps it could be used as a goal, but The Department disagrees with these availability of covered documents on a is not appropriate as a required score.47 commenters. The existence of an website, which were set forth in If the Department retained this standard, internet website is integral to the paragraphs (e)(1) through (3) of the successful execution of the notice-and- they argued, it would have to be clear proposal. Generally these standards that it applied only in the context of this access framework adopted in the final remain intact. The principal changes, rule. Without an accessible website that safe harbor, even though such a discussed below, include revisions to statement would not necessarily includes the covered document, the the website retention requirement, in plan administrator has not effectively preclude its expected application in paragraph (e)(2)(ii) of the final rule, and other contexts. Only one commenter ‘‘furnished’’ the document under the a new provision, in paragraph (e)(4), to notice-and-access portion of this safe supported these additional criteria, and address the application of the safe that commenter suggested that their harbor.51 Consequently, the Department harbor to mobile apps. cannot accept a lesser standard, for inclusion should only be a first step and Paragraph (e)(1) of the proposal stated example that the plan administrator that additional standards, including for the general requirement that plan must ‘‘take measures reasonably the design and layout of notices, should administrators must ensure the be included. The same commenter existence of an internet website at calculated’’ to ensure the website’s cautioned that the Department should which covered individuals are able to existence, as was suggested by a few also test NOIAs to ensure they are access covered documents. This commenters. The Department also understandable. provision is adopted without change. disagrees that this standard results in strict liability. The final rule explicitly In response to commenters’ concerns, This paragraph holds the plan administrator responsible for ensuring provides relief in paragraph (j), the Department has removed from discussed below, for reasonable events paragraph (d)(4)(iv) the more detailed the establishment and maintenance of the website. The Department that may interrupt the availability of guidelines for meeting the general covered documents on the website. readability standard. The final rule understands that, in many cases, some or all of the responsibilities associated Temporary interruptions due to internet requires that the NOIA must be written connectivity problems, routine in a manner calculated to be understood 48 See, e.g., Janan, D., Wray, D., ‘‘Readability: The maintenance, or network disturbances by the average plan participant. limitations of an approach through formulae’’ do not necessarily mean that the plan Although those additional guidelines (2012) (readability formulae found to be administrator failed to ensure the may be helpful tools suitable for inadequate), at http://www.leeds.ac.uk/educol/ existence of the website pursuant to this drafting clear and simple notices under documents/213296.pdf. See also Crossley, S.A., Allen, D., & McNamara, D. S., ‘‘Text readability and safe harbor. this rule, the Department agrees with intuitive simplification: A comparison of One commenter requested that the commenters that it would not be readability formulas’’ (Apr. 2011, Vol. 21, No. 1, pp. Department modify paragraph (e)(1) of desirable to imply that these guidelines 84–101) (traditional readability formulas weak due the proposal to prohibit website are mandatory for ERISA disclosures or to reliance on overly simplistic mechanisms), at http://nflrc.hawaii.edu/rfl. But compare Federal addresses from changing for at least notices in general. The Department also Plain Language Guidelines, (March 2011, Rev. 1, acknowledges some of the more specific May 2011) (federal agencies should apply user 50 One commenter specifically expressed concern objections that commenters raised. For testing techniques to aid compliance with The Plain about service providers’ potential misuse of plan example, it may not be possible to Writing Act of 2010 (P.L. 111–274) (Oct. 13, and account information, for example covered 2010),)), at https://plainlanguage.gov/guidelines/. individuals’ personal financial information, that is consistently achieve a Flesch reading 49 See 29 CFR 2520.102–2(a) (‘‘The summary plan obtained in connection with their provision of plan ease test score of at least 60, especially description shall be written in a manner calculated services, including furnishing information and for NOIAs that consolidate content for to be understood by the average plan participant disclosures, or maintaining a website, to comply more than one covered document, as and shall be sufficiently comprehensive to apprise with this rule. The commenter suggested that the the plan’s participants and beneficiaries of their Department should prohibit the use of any such permitted by paragraph (i) of the rule. rights and obligations under the plan. In fulfilling information to market or sell non-plan products and Some experts posited that using ‘‘one- these requirements, the plan administrator shall services to covered individuals. This commenter’s size-fits-all’’ scoring programs does not exercise considered judgment and discretion by concern is beyond the scope of this safe harbor, always result in effective taking into account such factors as the level of which addresses only a plan administrator’s comprehension and education of typical compliance with ERISA’s standard for the participants in the plan and the complexity of the furnishing of covered documents to covered 47 One commenter suggested that, if the terms of the plan. Consideration of these factors individuals. Department wishes to include additional standards will usually require the limitation or elimination of 51 Other methods of furnishing covered for plan administrators to achieve ‘‘readability,’’ the technical jargon and of long, complex sentences, the documents electronically do not require the final rule should include only the Flesch reading use of clarifying examples and illustrations, the use existence of a website. See paragraph (k) of the final ease score, an objective standard. of clear cross references and a table of contents.’’). rule.

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some specified period of time, because until ‘‘it is superseded by a subsequent furnishing requirements, not underlying website addresses can shift over time. version of the covered document.’’ This retention requirements. The one-year The Department declines to adopt this provision was intended to ensure that period in paragraph (e)(2)(ii) of the final suggestion. The final rule, in paragraph covered individuals have readily rule is responsive to both of the (e), relating to minimum standards for available the information they need to principal observations by most the website, contains a new provision protect and enforce their rights under commenters: First, by specifically requiring that covered documents ERISA and the plan, especially the SPD addressing the fact that not all covered remain available on the website for a for example. The Department requested documents are in fact superseded by specified time. In addition, paragraph comments as to whether there are another version; and second, by (d)(3)(i)(D) of the final rule requires each circumstances when a superseded providing clear time limits for website NOIA to contain a sufficiently specific document may still be relevant to a retention of these covered documents. website address or hyperlink to provide covered individual’s claims or rights Affected parties will benefit from the ready access to the covered document. under the plan and, if so, whether administrative simplicity and Collectively, these two provisions additional or different conditions are consistency of a bright-line test to provide for easily locatable content needed to address such circumstances. follow when managing, or accessing, available for a long enough time. At this The Department also invited comments covered documents on a website. time, the Department therefore declines on whether a final rule should explicitly Accordingly, paragraph (e)(2)(ii) of the to establish additional prescriptive address the category of covered final rule now provides that a covered mandates on website management or documents that technically do not document must remain available on the website maintenance, such as hyperlink become superseded by reason of a website until it is superseded by a redirects or hyperlink expiration rules, subsequent version of the covered subsequent version of the covered in response to this comment. document, but instead cease to have document, if applicable, but in no event Paragraph (e)(2) of the proposal continued relevance to covered less than one year after the date the contained six paragraphs. Paragraph individuals (e.g., a blackout notice). covered document is made available on (e)(2)(i) of the proposal provided that The Department received a wide the website pursuant to paragraph the covered document must be available range of comments on paragraph (e)(2)(i) of the rule.52 Under this on the website no later than the date on (e)(2)(ii) of the proposal. A few standard, all covered documents must which the covered document must be commenters, who were generally remain on the website for at least one furnished under ERISA. Paragraph opposed to the new safe harbor, argued year from the date they were first posted (e)(2)(ii) required that a covered that all covered documents should be on a website. This will protect document remain available on the retained on the website indefinitely, participants from confusion and website until it is superseded by a regardless of continued relevance. Many uncertainty about how long their subsequent version of the covered more commenters, however, supported documents will be available on a document. Paragraph (e)(2)(iii) required the proposed retention provision, but website. Some covered documents, for that a covered document be presented even these commenters suggested a example, the SPD, must remain on a on the website in a manner calculated need for a clearer standard for the website until they are superseded by a to be understood by the average plan category of covered documents that subsequent version of themselves, even participant. Paragraph (e)(2)(iv) of the technically do not become superseded if longer than one year from the date proposal provided that the covered by reason of a subsequent version of the they were originally posted on a document must be presented on the covered document, such as blackout website. website in a widely-available format or notices under section 101(i) of ERISA or formats that are suitable to be both read notices of the right to divest employer The following examples illustrate online and printed clearly on paper. securities under section 101(m) of how paragraph (e)(2)(ii) of the final rule Paragraph (e)(2)(v) provided that the ERISA. For this subset of covered applies to several different covered covered document must be searchable documents, commenters offered a documents. electronically by numbers, letters, or variety of suggestions for how long such Example 1. A plan’s SPD is furnished words. Finally, under paragraph documents should be retained on the under the new safe harbor on January 1, (e)(2)(vi) of the proposal, the covered website. A number of commenters, for 2025 (‘‘2025 SPD’’). Thus, it is first document must be presented on the example, suggested that such posted on the website on the same date. website in a widely-available format or documents should be retained on the The plan is materially amended in 2026, formats that allow the covered website ‘‘until they cease to have and a summary of material document to be permanently retained in relevance,’’ leaving it to the plan modifications (SMM) was timely an electronic format that satisfies the administrator to determine whether and furnished. A new SPD is furnished via requirements of paragraph (e)(2)(iv) when a document ceases to be relevant. posting on the website on January 1, (requiring a format that can be read Other commenters, however, strongly 2030 (‘‘2030 SPD’’), reflecting the 2026 online and printed clearly on paper). preferred that the Department set a amendment. The 2025 SPD must remain Paragraph (e)(2)(vi) of the proposal was defined length of time, with comments on the website at least until January 1, included to enable covered individuals ranging from one to three years. These 2030, the date the updated 2030 SPD is to keep a copy of the covered document, commenters emphasize that there is a furnished superseding the 2025 SPD. In for example, by saving it to a file in benefit to having a bright line standard this example, the 2025 SPD is electronic format, on a personal for compliance purposes. superseded by a subsequent covered computer. After considering the comments document more than one year after the A significant number of commenters received, the Department has decided a focused on the requirement, in one-year posting requirement strikes the 52 These safe harbor requirements are not paragraph (e)(2)(ii) of the proposal, appropriate balance between ensuring retroactive. Plan administrators are not required to relating to how long covered documents participants have reasonable electronic go back and post historical versions of covered documents, dated prior to the effectiveness of this must remain available on the website. access to current documents and the final rule, on the website. The Department intends This provision in the proposal required appropriate scope of this regulation, these website retention provisions to be prospective that a document must remain available which provides a safe harbor for in nature.

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date it was first made available on the any time, have access to at least a year’s that provides a new method for plan website. worth of quarterly pension benefit administrators to furnish covered Example 2. A pension benefit statements, which may be accessed documents to plan participants. statement for a participant in a defined throughout the year for a variety of Some commenters asked the benefit pension plan is furnished on reasons, including to verify Department to include standards for the January 1, 2030 (‘‘2030 PBS’’), via contributions, review and revise asset design of the website, such as requiring posting it on the website on the same allocations, or otherwise manage their that information be presented in a date. Subsequently, the plan furnished retirement assets. This also provides simple and direct form, and that the rule the same participant the next pension ample time for covered individuals who should prevent covered individuals benefit statement on January 1, 2033 wish to print or download covered from having to click through various (‘‘2033 PBS’’), via posting it on the documents to do so. levels to find documents. The website on the same date. The 2030 PBS The new website retention provision Department disagrees that any changes must remain on the website until in paragraph (e)(2)(ii) of the final rule to the rule are necessary to manage January 1, 2033, when it is superseded does not preclude the ability of plan these concerns. The rule already by the 2033 PBS. In this example, the administrators to retain historical requires, in paragraph (e)(2)(iii), that 2030 PBS was superseded by a documents on the website longer than covered documents must be presented subsequent covered document more the minimum term required, if they on the website in a manner calculated than one year after the date it was first choose.53 Plan administrators may to be understood by the average plan made available on the website. prefer to archive or similarly preserve participant. Further, the rule requires, in Example 3. A pension benefit prior covered documents on the website paragraph (d)(3)(i)(D), that a website statement for a participant in a for a longer period of time than is address or hyperlink must be participant-directed defined required by paragraph (e)(2)(ii). Nor do ‘‘sufficiently specific’’ to provide ready contribution pension plan was these new website retention access to a covered document. A link furnished on January 1, 2030, via requirements alter a plan that requires a covered individual to posting it on the website on the same administrator’s general recordkeeping click through an unreasonable number date (‘‘Q1 Benefit Statement’’). requirements under ERISA. For of web pages to find a covered Subsequently, the plan furnishes the example, ERISA sections 107 (retention document would not satisfy the same participant the next pension of records) and 209 (recordkeeping and standard. The Department also believes benefit statement on April 1, 2030, via reporting requirements) separately that plan administrators and their posting it on the website on the same specify retention periods.54 Thus, service providers, rather than the date (‘‘Q2 Benefit Statement’’). The Q1 participants may continue to request Department, are better equipped to Benefit Statement must remain on the covered documents that are older than address the technicalities involved in website until January 1, 2031, one year one year. Plan terminations, benefit designing websites to disclose required after it was first posted to the website. determinations, and many other information. In this example, even though the Q1 circumstances and events naturally will Paragraph (e)(3) of the proposal Benefit Statement was superseded on arise during, and following, an required that the plan administrator take April 1, 2030, the date on which the Q2 employer’s sponsorship of a pension measures reasonably calculated to Benefit Statement is posted, the Q1 benefit plan that require special ensure that the website protects the Benefit Statement must remain on the attention to the proper management and confidentiality of personal information website for at least one year, i.e., at least retention of documents.55 Plan that could be included in covered until January 1, 2031. administrators’ (and other plan documents. The Department explained Example 4. A blackout notice is fiduciaries’) responsibilities with that given the industry’s increasing furnished to all plan participants on respect to retaining plan records and reliance on and use of electronic January 1, 2029, via posting it on the documents and responding to technology, many plans already have website. The blackout notice, among participant requests are unchanged from secure systems in place to protect other things, announced an upcoming existing law. The new safe harbor covered individuals’ personal 30-day blackout period ending on information, as is generally required by adopted today is not meant to alter March 15, 2029. The blackout notice section 404 of ERISA. The Department ERISA obligations with respect to the must remain on the website until at requested comments on whether this maintenance of plan records or least January 1, 2030. In this example, standard is sufficient to protect covered otherwise. This is an optional safe even though the blackout period ended individuals’ personally identifiable harbor available to plan administrators on March 15, 2029, the blackout notice information. Commenters disagreed on must remain on the website for at least the sufficiency of this standard. Some 53 One commenter argued that including one year, i.e., at least until January 1, numerous historical documents on the website commenters asserted that the proposal 2030. could create unnecessary confusion. The adequately addressed information The Department does not agree that Department disagrees. Any such confusion should privacy and security concerns and that covered documents must be available be minimal to the extent that the current version of the approach taken in the proposal, any covered document must be presented on the online indefinitely, as suggested by website in a manner calculated to be understood by which included a principles-based several commenters, but paragraph the average plan participants pursuant to paragraph standard, is preferable to specific (e)(2)(ii) of the final rule reflects the (e)(2)(iii) of the final rule. A covered document that standards, requirements, and Department’s determination that is buried or obscured on the website is not, in the certifications, which can quickly Department’s view, presented on the website in a covered documents must, at a manner that satisfies this standard. become obsolete with rapidly-changing minimum, be available on the website 54 29 U.S.C. 1027, 1059. technology. Other commenters do not for at least one year. Covered 55 As one commenter pointed out, maintaining believe the Department sufficiently individuals will benefit from having historical versions of covered documents not only addressed privacy concerns in the covered documents available to them for is necessary for plan administrators to satisfy their proposal, especially for inactive or ERISA recordkeeping obligations and this final rule, a reasonable period of time. For but may be in plan sponsors’ own interest to the unused electronic addresses, which, in example, participants in a participant- extent they wish to rely on such covered documents the view of some commenters, are likely directed individual account plan will, at in later litigation or enforcement matters. to result for participants who are

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assigned an electronic address by their process. The Department agrees that the (f)(1) of the final rule clarifies that only employer. These commenters suggested rule should more clearly state its one paper copy of any specific covered that the more devices on which the inclusion of additional and new document must be provided free of Department allows electronic delivery technologies, as long as those charge under this safe harbor. Beyond of information, the more complex technologies are not inconsistent with a that, whether the plan charges for security issues become, and that plan administrator’s ability to satisfy the additional copies of the same covered security requirements may need to vary requirements of the safe harbor. The document depends on the terms of the from covered document to covered Department does not want to inhibit particular plan and other applicable document. innovation in the delivery of required provisions of ERISA and regulations The Department in the final rule has ERISA disclosures, especially as forms thereunder, and is outside the scope of maintained the principles-based of communication improve and expand. this regulation. standard included in the proposal, Thus, for purposes of the safe harbor, A few commenters focused on how agreeing with commenters that efforts to the term ‘‘website’’ means an internet quickly plan administrators must establish specific, technical website, or other internet or electronic- respond to requests under the safe requirements would be difficult to based information repository, such as a harbor. Some suggested time limits for achieve, given the variety of mobile application, to which covered responses, like those adopted by the technologies, software, and data used in individuals have been provided SEC for shareholder reports, i.e., within the retirement plan marketplace. The reasonable access. three business days.57 The Department commenters requesting more specific is not persuaded that strict time limits standards themselves point to this (4) Right to Copies of Paper Documents are needed. The 2002 safe harbor does difficulty, insofar as these issues or To Globally Opt Out of Electronic not contain time limits for responses become more complex as innovations Delivery and the Department is unaware of harm occur and the same standards may not The Department believes that it is or exploitation in this area. The safe be appropriate for all covered essential that any enhanced use of harbor requirement to respond to documents, all systems, or in all electronic disclosure permitted under requests rests with the ERISA plan circumstances. Therefore, the final rule ERISA respects the preferences of administrator. The Department expects continues to require that the plan covered individuals who want to that the plan administrator will furnish administrator, possibly in coordination receive covered documents on paper, the copy to the covered individual as with plan service providers, take mailed or delivered to them. To that soon as reasonably practicable after measures reasonably calculated to end, the proposal contained two receiving the request. This overarching protect the security and privacy of safeguards, in paragraph (f), for these standard of reasonableness is sufficient covered individuals’ information.56 covered individuals. to protect covered individuals’ right to Paragraph (e)(4) of the final rule is The first safeguard, in paragraph (f)(1) paper. The statute itself also provides a new. It was added in response to a range of the proposal, provided that upon civil enforcement remedy, when of questions from commenters about request from a covered individual, the appropriate.58 what constitutes a ‘‘website’’ for plan administrator must promptly The second safeguard, in paragraph purposes of the safe harbor. In the furnish to such individual, free of (f)(2) of the proposal, provided covered preamble to the proposed rule, the charge, a paper copy of a covered individuals with the right to opt out of Department explicitly asked for document. Commenters electronic delivery and receive some or commenters’ views on whether, and overwhelmingly supported protecting all covered documents in paper form. how, the rule should be modified to covered individuals’ rights to request a Commenters overwhelmingly supported include other web-based mechanisms, free paper copy of a required ERISA this provision and, thus, it was adopted such as messaging and mobile ‘‘apps.’’ disclosure. A few commenters focused with only two minor changes. As Although some commenters on the number of paper copies a covered proposed, this provision allowed recommended a narrow application of individual could request, and receive, covered individuals to ‘‘globally’’ opt the rule to traditional websites accessed free of charge. These commenters were out, in the sense that individuals would with a browser, most commenters on concerned about potentially abusive be able to opt out of electronic delivery this issue encouraged the Department to practices in which a covered individual entirely. In addition, the provision broadly define what constitutes a makes several requests for different granted covered individuals the right to website, or at least to clarify that the covered documents. The Department is opt out of electronic delivery on a term covers any appropriate electronic not persuaded that this is a legitimate document-by-document, a` la carte basis. source for accessing information. These concern. The 2002 safe harbor permits Commenters universally supported the commenters want to ensure that the rule paper copies, free of charge, and the right of covered individuals to globally accommodates advances in technology Department is unaware of abusive opt out of electronic delivery. Many and permits the use of mobile practices of this nature. The final rule commenters, however, objected to applications, texting, and other internet- allows covered individuals to request requiring plan administrators to offer a based mechanisms and, in some cases, more than one covered document document-by-document opt-out right. these commenters suggested specific pursuant to this provision. For instance, Current recordkeeping systems, they language for the rule or that the a participant could contact the plan explained, generally apply an ‘‘all or Department adopt a good faith or similar administrator for a participant-directed nothing’’ approach to paper versus standard in the rule to allow plan individual account plan and request electronic delivery. An a` la carte system, administrators to use new technology paper copies of the plan’s comparative by contrast, would require difficult and without having to revisit the regulatory investment chart required by 29 CFR costly system modifications to keep 2550.404a–5(d)(2) as well as a copy of track of paper preferences on a 56 Some commenters raised issues regarding the participant’s most recent quarterly document-by-document basis for each liability for security breaches. This safe harbor only pension benefit statement. In response covered individual. Commenters establishes an optional method for delivery of covered documents. Issues pertaining to liability for to commenters concerns about repeated security breaches are beyond the scope of this safe requests for the same version of the 57 17 CFR 270.30e–3(e). harbor. covered document, however, paragraph 58 29 U.S.C. 1132(c)(1).

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explained that it is highly atypical for procedures governing requests or the safe harbor does not preclude plan plan administrators to offer a ‘‘pick-and- elections under paragraphs (f)(1) and (2) administrators from continuing to make choose’’ approach to opting out of of the safe harbor. This provision also online information available to covered electronic delivery. It would be rather provided that the procedures are not individuals who globally opt out of cumbersome and complicated for plan reasonable if they contain any electronic delivery under the safe administrators to track opt-outs provision, or are administered in a way, harbor. One commenter, for example, participant-by-participant, and that unduly inhibits or hampers the noted that some plan administrators document-by-document, over time, they initiation or processing of a request or may post covered documents online and added. In addition, the fact that the rule election. This paragraph is adopted continue to send NOIAs to covered permits plan administrators to provide a without change in the final rule, individuals that have decided to opt out combined annual NOIA for multiple although a few commenters raised of electronic delivery. The safe harbor covered documents would exacerbate concerns with this provision. provides plan administrators with an this problem, and potentially create The principal concerns related to the optional method of furnishing covered confusion for covered individuals. For provision’s lack of specificity, lack of documents through electronic media, example, the commenters question prescriptiveness, and level of discretion and paragraph (f)(3) provides a whether an NOIA would have to afforded plan administrators. These mechanism for individuals to override a include an explanation that a covered commenters were worried that the plan’s decision and select paper individual can opt out for one, more provision would not adequately protect delivery. When an individual makes an than one, or all of the combined covered covered individuals who prefer paper election under paragraph (f)(2) of the documents and a detailed explanation documents, either because plan safe harbor, the plan administrator must of how to do so for each possible opt- administrators would establish onerous return that individual to paper delivery, out variation. Commenters also pointed procedures designed to frustrate at which point the conditions of the safe out that even if the rule were limited to requests or because covered individuals harbor no longer apply with respect to a global opt out, covered individuals would find it difficult to follow such that individual. Once a plan respects the under the rule always may request a procedures. The suggested solution, individual’s election and satisfies its paper copy of any specific covered according to these commenters, would obligation to furnish paper documents, document. Thus, according to these be the establishment of required, the plan may continue to provide online commenters, accommodating an a` la uniform procedures for all plans. Ideas access to covered documents that are carte opt-out right would be for elements of such procedures available as well. The safe harbor has no burdensome and result in costs that included, among other things, effect on optional action in this context could deter plan administrators from mandatory written procedures for by plan administrators. using the safe harbor. At least one tracking opt-outs; and a requirement Finally, paragraph (f)(4) of the comment letter can be interpreted as that plan administrators permit covered proposal is adopted in the final rule support for requiring plan individuals to submit opt-out elections with one minor change for clarification. administrators to offer a document-by- either electronically or in writing. This paragraph requires that the system document opt out right, in that it These ideas may be perfectly identifies practices showing that some reasonable with respect to certain plans, for furnishing the NOIA must be participants might prefer a combination and the Department does not wish to designed to alert the plan administrator of paper and electronic discourage the establishment of such of an invalid or inoperable electronic communications. procedures under this safe harbor. The address. If a plan administrator learns of The Department is persuaded that the Department does not believe, however, an invalid or inoperable electronic critical protection for covered that it is appropriate to set forth a single address (e.g., the email is returned as individuals is the right to globally opt set of procedures to govern all requests undeliverable or ‘‘bounces back’’ and out of electronic delivery. Therefore, the or elections for all plans, in all the problem is not promptly cured), the final rule strikes the phrase ‘‘some or circumstances. The general, principle- plan administrator must treat the all’’ from paragraph (f)(2), retaining (and based approach in paragraph (f)(3) of the covered individual as if he or she had making clearer by adding the term final rule provides stringent and elected to opt out of electronic delivery ‘‘globally’’) only the global opt-out as a protective guardrails to protect covered under paragraph (f)(2). One way to cure requirement. This global opt-out individuals’ rights, while avoiding the the problem would be to furnish the requirement in paragraph (f)(2) of the pitfalls of adopting strict one-size-fits-all NOIA to a valid and operable secondary final rule is the minimum; plan procedural requirements that must be electronic address that had been administrators may offer additional opt- applied by all plans in all provided by the covered individual out election options, such as a circumstances, and that might inhibit when alerted of the invalidity or document-by-document opt out or one innovation in the implementation of inoperability of the primary electronic based on categories or classifications of this notice-and-access framework. address. Another way to cure the covered documents. For example, some Finally, the Department finds problem would be to promptly obtain a participants might be comfortable unpersuasive the assertions that some new electronic address for the covered knowing that certain documents, such covered individuals may be unaware of individual. Some commenters offered as the SPD, are available on the website, their plan’s procedures for making additional remedies for promptly curing but prefer to receive paper versions of requests or elections. Paragraph (g) of an invalid electronic address. The other documents, such as their quarterly the final rule, discussed in more detail Department agrees that other acceptable pension benefit statements. This below, requires these procedures to be cures exist depending on the particular provision also was revised to include set out in writing in an initial paper facts and circumstances surrounding an the words ‘‘free of charge,’’ clarifying notice to all individuals to whom the NOIA that cannot be delivered. that covered individuals may not be plan administrator intends the safe Regardless of the procedures that a plan charged an opt-out fee. harbor to apply, before the safe harbor administrator implements to cure an Paragraph (f)(3) of the proposal can be used. invalid electronic address, if the required that the plan administrator A couple of commenters also asked problem is not promptly cured, the establish and maintain reasonable for confirmation that paragraph (f)(3) of deemed election of paper delivery will

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persist until the plan administrator is substantially increase cost, time and a stricter standard for monitoring able to obtain a valid and operable liability for plan fiduciaries.’’ In support covered individuals’ use of disclosures electronic address for the covered of this position, they maintained that furnished electronically than for paper individual. the safeguards in paragraph (f)(4) of the deliveries. The practical effect of Paragraph (f)(4) is solely a safeguard proposal are reasonably crafted and paragraph (f)(4) of the final rule is to ensure that covered individuals sufficient to resolve potential electronic analogous to the circumstances that actually receive their pension plan delivery failures, and that any arise when a plan is alerted to an disclosures by requiring different additional obligations would be invalid physical mailing address when treatment of a covered individual when unnecessary and unsupported from a a letter is returned as undeliverable. Of his or her electronic address is invalid cost-benefit perspective. These course, this final rule does not prevent or inoperable. As long as the plan commenters also opposed a tracking or plan administrators who already engage administrator is not alerted to such a monitoring obligation on policy in some level of monitoring from problem, and the other conditions of the grounds, arguing that it would be continuing to do so. safe harbor are satisfied, the plan inconsistent for the Department to (5) Initial Notification of Default administrator is considered to have impose a tracking or monitoring furnished the covered documents Electronic Delivery and Right To Opt requirement on plan administrators Out required under Title I of ERISA. This using electronic delivery when they provision does not address issues such currently are unable to determine if Paragraph (g) of the proposal provided as whether a covered individual read, individuals open and read paper that the plan administrator must furnish understood, or had actual knowledge of disclosures sent by U.S. mail. In this to each individual, prior to the plan the contents of the covered documents regard, they asserted that it would be administrator’s reliance on this section accessed.59 Nor does this provision poor and inconsistent policy to regulate with respect to such individual, a impose an affirmative obligation on the electronic delivery more stringently notification on paper that some or all plan administrator to monitor whether than traditional paper delivery methods. covered documents will be furnished covered individuals visit the specified electronically to an electronic address, a The Department disagrees that website or login at the website. statement of the right to request and Some commenters recommended that compliance with this final rule, which obtain a paper version of a covered paragraph (f)(4) should include includes a variety of protections and document, free of charge, and of the additional safeguards, such as a safeguards for covered individuals, in right to opt out of receiving covered requirement that plan administrators addition to this paragraph (f)(4), fails to documents electronically, and an monitor, using electronic tracking tools, satisfy ERISA’s standard for delivery. explanation of how to exercise these whether covered individuals actually The Department does agree, however, rights. receive, open, read, or access online the that imposition of a monitoring The Department is adopting NOIA or covered documents. These requirement could be very expensive, paragraph (g) with a few modifications commenters argued that without a especially for small plans, to the extent in response to commenters’ suggestions, monitoring requirement, NOIAs could technological systems have to be which are explained below. The final end up in a spam folder or be buried or replaced or altered significantly, or rule continues to require that each otherwise misfiled, resulting in a additional, potentially costly, plan individual with respect to whom a plan covered individual never actually services have to be procured. Even the administrator intends to rely on the new accessing a covered document online. A most basic requirement for website safe harbor, be furnished a notification, few commenters questioned whether monitoring, for example tracking the on paper, that some or all of the plan’s application of the safe harbor would instances of users visiting a particular covered documents will be furnished adequately result in covered documents page on a website or views of a screen electronically to an electronic address. actually being received and whether the on an app, would require a web The initial notice, as proposed, also conditions of this rule are sufficient to analytics tool, according to the required a statement of the right to satisfy the general standard for commenters. Even for plan request and obtain a paper version of furnishing documents under ERISA. administrators that already, as suggested covered documents and of the right to Other commenters strongly opposed by a few commenters, engage in some opt out of receiving covered documents the imposition of tracking or monitoring level of monitoring, transitioning their electronically, free of charge, and an obligations on plan administrators. systems and procedures to comply with explanation of how to exercise these These commenters did not necessarily a specific, technical requirement in this rights. The Department continues to challenge the existence of tracking or safe harbor would not be without some believe that it is important for all monitoring technology to learn about burden and cost. It is unlikely in all participants and beneficiaries, who are participants’ electronic engagement; cases that the capabilities or functioning accustomed to the current ERISA indeed some commenters pointed to of existing monitoring systems would delivery rules, to be notified, on paper, tracking capabilities when citing the align precisely with a new regulatory that the plan administrator is adopting benefits of electronic delivery, possibly requirement. Further, the Department a new method of electronic delivery. If even correlating to higher deferral rates. believes that the rule’s protections for the plan administrator does not intend Rather, these commenters opposed a covered individuals, not only paragraph to rely on this new safe harbor for one tracking or monitoring obligation on the (f)(4) but, for example, the clear and or more employees, however, the plan grounds of economic burdens. One timely communication of website administrator does not need to send commenter, for example, stated that activity and paper and opt-out rights to these employees an initial notification. ‘‘requiring employers to ensure that a preserve individuals’ delivery To illustrate, assume that an existing required document is received and preferences, taken together, provide a defined contribution plan covers three read—when this has not been required method of furnishing documents that is participants, only one of whom is for paper documents—would surely more than reasonably calculated to covered under the 2002 safe harbor as ensure actual receipt of covered an employee who is ‘‘wired at work.’’ 59 See Intel Corp. Inv. Policy Cmte. v. Sulyma, 140 documents. Thus, the Department does This plan could take advantage of the S. Ct. 768 (2020). not see a compelling reason to establish new safe harbor for all three

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participants, in which case each commenters offered no basis to provides, in paragraph (g), that plan participant would have to be furnished conclude additional paper notices administrators identify the electronic the initial notification, even the would be significantly more effective, address that will be used for a particular employee who is ‘‘wired at work.’’ particularly in light of the additional individual and any instructions Alternatively, this plan could take costs such a requirement would entail. necessary to access the covered advantage of this safe harbor only with In addition, the Department notes that documents. The Department agrees that respect to the two participants who are the initial notice is not the only it would be helpful for a plan not covered under the 2002 safe harbor, protection for participants and administrator to identify the specific in which case the plan would furnish beneficiaries who will be transitioned to electronic address that will be used to the initial notification only to these two notice-and-access electronic disclosure. furnish covered documents to a covered participants. The specific purpose of the initial notice individual and that the additional Many commenters requested an is to alert covered individuals to the burden, if any, of including this exception to the requirement that the coming change and of their rights under personalized information will be more initial notice must be furnished on the new disclosure framework. Covered than offset by the benefit to both the paper for individuals who already individuals, however, will continue to plan administrator and covered receive disclosures electronically under be informed of these rights in all future individuals of stating, up front, the the 2002 safe harbor. Commenters were NOIAs. The Department drafted this electronic address that will be used. concerned that, in this context, safe harbor mindful of important This requirement will help to identify participants and beneficiaries who are periods of transition for covered and rectify potential mistakes for an accustomed to receiving electronic individuals, not only requiring an initial individual’s preferred electronic address disclosures may be confused by a paper notice before electronic delivery begins and to clearly identify electronic notice, or might ignore it altogether. for a particular individual, but also addresses assigned by the employer. Some of these commenters suggested requiring all future NOIAs thereafter to Second, the Department agrees that that individuals covered by the 2002 contain similar information, and a individuals will benefit from the safe harbor should not be required to special rule to address the time at which inclusion of any instructions that will receive an initial notice at all. On the covered individuals sever from be necessary to access covered other hand, the Department received employment. documents, for example whether comments supporting the requirement Although a number of commenters individuals will have to use passwords, that an initial notice must be furnished supported the proposed content download a mobile application, or set on paper to all intended covered requirements, without modification, up an online account to view secure individuals, without exception. The other commenters recommended a documents. Third, the Department Department believes that commenters’ variety of additional content added to the final rule a requirement concern about potential confusion on requirements for the initial notice that the initial notice include a the part of individuals receiving an required under paragraph (g) of the cautionary statement that the covered initial notice is speculative at best. proposal. For example, commenters document is not required to be available Further, even if an individual has been suggested that it would benefit covered on the website for more than one year; receiving electronic disclosures individuals if the initial notice included or, if applicable, after it is superseded pursuant to the 2002 safe harbor, the instructions for how to access covered by a subsequent version of the covered logistics of electronic disclosure likely documents and the electronic address document. This addition is to make sure will work differently under the new safe that will be used to furnish NOIAs that covered individuals are put on harbor, for example with respect to the under the safe harbor. Commenters notice as they transition to a notice-and- right to globally opt out. Therefore, the point out that a covered individual’s access disclosure framework that Department continues to believe that electronic address plays a crucial role covered documents may not be available application of this new safe harbor under the new safe harbor, especially online indefinitely. warrants an initial notification, in with respect to situations in which the paper, advising participants at the employer will assign an electronic The Department did not adopt, as outset how covered documents will be address (and here, especially if an requirements, any of the other content furnished and their rights under the employer assigned a commercial suggested by commenters; the new electronic delivery framework and electronic address, such as a Google Department notes, however, that the that confusion or other harm is highly email account (or ‘‘gmail.com’’)). content requirements for initial notices unlikely. To that end, a plan Additional suggestions for required in the final rule, unlike for NOIAs, are administrator may not rely on the 2002 content included a list of disclosures the not limiting. As long as additional safe harbor to furnish the initial notice plan intends to provide electronically, a content on the initial notice is relevant electronically to any participant or statement that individuals who request and not inaccurate or misleading, plan beneficiary that will be a covered paper will be protected from retaliation, administrators may personalize and individual under the new safe harbor. the right of individuals to print covered further enhance the initial notice to A few commenters questioned the documents at the employer’s office, and better communicate the plan’s transition sufficiency of providing only one initial a toll-free number to contact the plan for to electronic disclosure under the safe notice to warn participants and password and other assistance. harbor. Finally, the Department added beneficiaries about the transition from Although the Department disagrees one additional, non-content, paper to electronic delivery. with the appropriateness and necessity requirement to paragraph (g), that the Commenters made various suggestions, of each item on the broad list of initial notice must be written in a including that the Department require additions offered by these commenters, manner calculated to be understood by plan administrators to send two such the Department was persuaded by the average plan participant; this change notices before relying on the safe harbor, commenters that the initial notification is intended merely to confirm that the and that additional notices should be could be improved, and the transition to initial notice must satisfy the same provided annually and at termination of electronic delivery made smoother, by general readability standard as the employment. The Department declines requiring certain additional items of NOIA and other required ERISA to adopt these suggestions. These information. First, the final rule now disclosures.

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One commenter raised an issue with employee’s severance from employer-provided email account. The respect to the prominence of the initial employment. As proposed, paragraph Department agrees that the special notification required by paragraph (g) of (h) provided that, at the time a covered severance provision is not necessary the proposal. This commenter was individual who is an employee severs when a personal electronic address is concerned that initial notifications from employment with the employer, being used to provide covered might be packaged or combined with the plan administrator must take documents to a covered individual. other disclosures, including non-ERISA measures reasonably calculated to Therefore, the Department has revised employment materials, distributed ensure the continued accuracy of the paragraph (h) to read as follows: ‘‘At the during the onboarding process and that electronic address described in time a covered individual who is an newly hired individuals might lose paragraph (b) of the rule or to obtain a employee, and for whom an electronic track of them. This commenter new electronic address that enables address assigned by an employer requested that the final rule include a receipt of covered documents following pursuant to paragraph (b) of this section requirement that an initial notice be the employee’s severance from service. is used to furnish covered documents, furnished alone and not, for example, Many commenters suggested severs from employment with the with enrollment or other materials. eliminating this provision in its entirety, employer, the plan administrator must Others disagreed with this commenter arguing that it is unnecessary and take measures reasonably calculated to and believed that initial notices should duplicative, because paragraph (f) of the ensure the continued accuracy and be contained in plan enrollment proposal, which required a plan availability of such electronic address or materials, or for instance in a new administrator to take curative steps if to obtain a new electronic address that employee packet or with other the electronic address of a covered enables receipt of covered documents onboarding human resource documents. individual becomes invalid or following the individual’s severance The Department understands the inoperable (i.e., the ‘‘bounce back’’ from employment.’’ concerns of the former commenter, but provision) will remedy problems with This revision also addresses concerns believes it may be impractical to electronic addresses of former raised by representatives of mandate that the initial notice be employees. The Department intends to multiemployer plans. These furnished alone. The Department agrees ensure a seamless transition for the representatives stated that the with the latter commenter that it makes dissemination of ERISA pension plan Department should adjust paragraph (h) common sense for plan administrators information when an employee leaves to better reflect and accommodate the to distribute initial notices with employment. And as such, the experiences of individuals covered by a standard enrollment materials. It is Department disagrees that paragraph (f) multiemployer plan, who may work for customary for plan administrators to will address every circumstance in multiple different employers in the consolidate or package different which an electronic address becomes same year, if not the same month. These documents or disclosures into a single inoperable or no longer associated with representatives also stated that it is not enrollment package for organizational a covered employee who severs from typically the case that employees are purposes and for the sake of efficiency. employment. For example, emails sent provided email addresses through their The requirement in paragraph (g) that to employer-provided email addresses employers in the multiemployer sector the initial notification be in writing is of employees who have severed and that those multiemployer plans who sufficient protection against the employment will not necessarily bounce do deliver notices electronically, do not possibility that covered individuals will back in a timely fashion, or ever, as typically use employer-provided emails. overlook such notices. Accordingly, no would be necessary to give the plan Thus, this revision in practice will change to paragraph (g) of the proposal administrator time to furnish documents usually exclude plan administrators of is made in response to this comment. within applicable timeframes. As a multiemployer plans from the result, the Department is retaining the requirements of paragraph (h) of the (6) Special Rule for Severance From ‘‘severance from employment’’ rule, final rule. Employment With Plan Sponsor subject to a few revisions. The special rule for ‘‘severance from Paragraph (h) of the final rule Other commenters recommended employment’’ requires a plan continues, as proposed, to include a limiting the rule to severing employees administrator to take measures special requirement for plan who are receiving covered documents reasonably calculated to ensure the administrators who wish to use the safe through an employer-provided continued accuracy of the electronic harbor for furnishing ERISA pension electronic address, not a personal address following a severance from plan disclosures to employees who have electronic address. These commenters employment, or to obtain a new address severed from employment.60 As argued that a special provision for that enables receipt of covered explained in the proposal, this special severance is necessary only for documents following the severance. rule focuses on circumstances when employees who have an employer- Many commenters requested there is a heightened concern about the assigned electronic address. If the clarification on what types of accuracy of electronic contact electronic address being used by a procedures would constitute such information in connection with an terminated employee is not one that has reasonable measures. One commenter been assigned by their employer, these suggested that the Department should 60 As explained in the preamble to the proposal, commenters argued, there is no obvious require plan administrators to furnish, the phrase ‘‘severance from employment’’ in reason that the address would cease to on paper, an additional, post- paragraph (h) is intended to have its ordinary be valid or used by the individual termination notice, with content similar meaning. A severance from employment occurs merely because of cessation of to the NOIA. Covered individuals when an employee dies, retires, is dismissed, or otherwise terminates employment with the employment. That is not the case with terminating their employment should employer that maintains the plan, including when employer-provided addresses, which are already be familiar with their plan’s the employee continues on the same job for a likely to cease working at termination of notice-and-access framework for different employer as a result of a liquidation, employment or at some point thereafter, delivery, so the Department disagrees merger, consolidation or other similar corporate transaction. Whether a severance from employment either because the employer deletes the that the rule should include an has occurred is determined based on the facts and email account or the severing employee additional notice requirement at circumstances of the particular situation. no longer uses or has access to the termination. Requiring another notice,

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especially in paper form, would behalf of a participant or beneficiary. standard for this notice, and paragraph increase the costs of compliance with The special rule excluded contingent or (d)(2) has been adopted as proposed to the safe harbor overall, and, in the irregular documents that are furnished provide for this ‘‘annual’’ combined Department’s view, unnecessarily. based on an individual transaction or NOIA. Employees separating from service are plan-status basis, or that are not The special rule in paragraph (i) of the sufficiently protected under this regularly furnished to participants and proposal elicited a large number of provision to the extent the rule requires beneficiaries. For example, a participant comments. Some of the commenters plan administrators to have procedures who receives notice of a blackout opposed paragraph (i) and argued that in place to ensure they have a correct period, as required by ERISA section permitting consolidation is insufficient electronic address to which notices will 101(i), may consider changing their because it fails to provide notice to be furnished. As an example, investment directions and, if so, must participants about important documents procedures that include requesting and do so within the timeline specified. that are due at different times. Without receiving an updated personal email Similarly, a participant who receives an NOIA each time a document is address for future notifications as part of notice of an adverse benefit claim posted online, these commenters worry a company’s standard off-boarding determination, as required by ERISA that covered individuals will have no process ordinarily would be sufficient to section 503(1), may wish to appeal or reason to go to the website. One meet this standard. If these measures take other action following such commenter pointed out that the very fail, the participant or beneficiary is no determination, in which case they documents that may be consolidated are longer a ‘‘covered individual’’ under similarly must act within defined the documents that are most critical to paragraph (b) of the final rule. periods of time. In either example, the covered individuals understanding their timing of the annual combined NOIA most basic retirement plan rights and (7) Special Rule for Annual Combined may not align with, and may even post benefits. Another commenter asserted Notices of Internet Availability date, the timing of the specific act that this concern is heightened for Although the proposal generally required or invited by the covered covered individuals in a participant- required, in paragraph (d)(1), that a plan document. Additional examples include directed individual account plan who administrator furnish an NOIA for each a qualified domestic relations order would receive only one notice per year covered document, a special rule in determination under ERISA section that covers all four of their quarterly paragraph (i) of the proposal allowed a 206(d)(3)(G)(i)(II), and a notice of failure pension benefit statements. This plan administrator to furnish one to meet minimum funding standards commenter argued that this framework annual combined NOIA (combined under ERISA section 101(d). may not, as a legal matter, constitute NOIA), subject to the timing In short, the Department excluded adequate ‘‘furnishing’’ of the quarterly requirements in paragraph (d)(2), that documents that it believes do not lend pension benefit statements. Further, incorporates or combines the content themselves, primarily because of their since the cost of sending an NOIA by required by paragraph (d)(3) with timing, irregularity, or requirement of email, for example, is or should be respect to one or more of a subset of potentially timely action by a covered insignificant, argued one commenter, covered documents. These documents individual, to a framework that permits plans will realize very little savings included, as applicable (1) a SPD; (2) a combination into one annual NOIA. The under the proposed special rule. SMM; (3) a summary annual report Department solicited comments on Other commenters, however, not only (SAR); (4) an annual funding notice; (5) whether, and why, the subset of covered supported the consolidation of notices an investment-related disclosure under documents eligible for paragraph (i) permitted by paragraph (i) of the 29 CFR 2550.404a–5(d); (6) a QDIA should be expanded or narrowed, and proposal, but in some cases requested notice; and (7) a pension benefit the criteria that would justify an that the Department expand the statement. The Department proposed a expansion or narrowing. In addition, the consolidation permitted for the final special rule for these covered Department asked for commenters’ rule to include additional disclosures. documents because they represent the views on whether, instead of an explicit Commenters offered a variety of most common and recurring disclosures list of the covered documents to which suggestions, including any information that are made to pension plan paragraph (i) applies, any final safe that must be furnished annually (e.g., participants, and are triggered by no harbor should adopt a principles-based the general plan information required by event other than the passage of time.61 or categorical approach, describing the paragraph (c) of the Department’s 404a– The Department excluded other type or nature of covered documents 5 participant-level fee disclosure required ERISA disclosures from this that may be combined. regulation 62) or any covered documents special rule, because, for example, they Paragraph (d)(2), as proposed, that would be furnished at the same are event-specific disclosures and might required that a combined NOIA for more time, such as disclosures based on plan communicate information that requires than one covered document under events.63 Several commenters also or invites specific and timely action on paragraph (i) be furnished at least once each plan year, and, if the combined 62 29 CFR 2550.404a–5, ‘‘Fiduciary requirements 61 The proposal included the SMM even though NOIA was used for the prior plan year, for disclosure in participant-directed individual it does not technically fit under the passage-of-time no more than 14 months following the account plans’’ (Oct. 20, 2010). descriptor. An SMM’s timing requirement sets it 63 For example, one commenter suggested if a apart from, and warrants different treatment than, prior year’s notice. The Department plan administrator changes investment providers, a other event-triggering disclosures, the timing for intended this combined NOIA to be an required blackout notice, pursuant to 29 CFR which more closely corresponds to the particular annual disclosure; to provide flexibility 2520.101–3, and the disclosure of changes to plan event. See 29 CFR 2520.104b–3(a) (requiring the to plan administrators and avoid investment options, pursuant to 29 CFR 2550.404a– plan administrator to furnish the SMM ‘‘not later 5(c)(1)(ii), should be permitted to be announced in than 210 days after the close of the plan year in potential compliance issues associated a combined NOIA. The Department did not accept which the modification or change was adopted’’). with a strict 12-month standard, this suggestion. The final safe harbor’s special rule In response to negative commentary on its inclusion however, the proposal provided that an generally is intended to apply to routine disclosures in this paragraph, the SMM is excluded from the ‘‘annual’’ combined NOIA may be that are furnished on a regular basis and that do not special rule in paragraph (i) of the final rule. invite action in response to the disclosure. The Despite this exclusion, the SMM remains a covered furnished up to 14 months following the blackout notice and disclosure of changes to plan document and may be furnished under the safe prior ‘‘annual’’ combined NOIA. investment options do not satisfy these criteria; in harbor, but it must have its own NOIA. Commenters did not object to the timing Continued

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requested inclusion of specified plan- 104(a) of ERISA. The second category is accommodate additional or future related notices required by the Internal any covered document or information covered documents that do not fit in the Revenue Code, such as the Code that must be furnished annually, rather second category in paragraph (i)(2), but automatic contribution arrangement than upon the occurrence of a particular that may be beneficial to include, for notices that currently may be furnished event, and does not require action by a example to reduce administrative with the Department’s QDIA notice.64 covered individual by a particular burdens on plans and improve the Other commenters responded deadline. The third category is any effectiveness of disclosures to covered favorably to the concept of a principles- covered document, not in the first and individuals.65 based category of documents that may second categories, if authorized in The fourth category, in paragraph be consolidated, beyond the seven writing by the Secretary of Labor, by (i)(4) of the final rule, deals with included in the proposal, and that might regulation or otherwise, in compliance applicable notices required by the be flexible enough to accommodate with section 110 of ERISA. The fourth Internal Revenue Code if authorized in future disclosure requirements. A category is any applicable notice writing by the Secretary of the Treasury. different commenter argued that a required by the Code if authorized in This category was added in response to principles-based standard for covered writing by the Secretary of the Treasury. the many commenters who requested a documents that may be consolidated is Paragraph (i)(1) of the final rule deals safe harbor that aligns with the Treasury not workable, because plan with the first category of permissible Department’s electronic media administrators may interpret the documents, which consists solely of the regulation for applicable notices at 26 language differently creating SPD. The Department finds that the SPD CFR 1.401(a)–21(c), especially for unnecessary confusion, including for lends itself to inclusion on an annual, disclosing Code automatic contribution covered individuals. Commenters also combined NOIA, especially because its arrangement notices and ERISA QDIA disagreed on whether plan inclusion generally will remind covered notices. administrators should be able to individuals as to its availability more Unlike the proposal, the special rule consolidate notices of more than one often than it otherwise would have to be no longer permits an annual NOIA to plan when offered by a plan sponsor furnished. Most commenters supported cover quarterly benefit statements and asked for clarification on this point. inclusion of this document. within the meaning of section In this connection, the Department Paragraph (i)(2) of the final rule deals 105(a)(1)(A)(i) of ERISA. The notes that the final rule applies to ‘‘an’’ with the second category of permissible Department was persuaded by employee benefit plan, and its documents and information. This commenters that an annual NOIA, for requirements must be satisfied with category includes certain annual example furnished on January 15 of a respect to each such plan, even if disclosures meeting certain conditions. given year, may be insufficient to sponsored by the same employer. Rather than listing the covered adequately alert covered individuals as Allowing covered documents for more documents, however, the final rule to the availability of subsequent benefit than one plan to be included on a describes this category as ‘‘any covered statements furnished later in that same combined NOIA could create confusion document or information that must be year, for example, on April 15, July 15, for covered individuals and would furnished annually, rather than upon and October 15. That view was not result in an even longer, less concise the occurrence of a particular event, and unanimous among the commenters, notice, especially to the extent notices that does not require action by a covered however, with many commenters for multiple covered documents for each individual by a particular deadline.’’ suggesting that a single annual notice of plan already may be consolidated. The NOIA for any covered document availability is likely a very common Paragraph (i) of the final rule is meeting this description may be practice, if not the norm, for plan appreciably different than the paragraph consolidated onto an annual combined administrators relying on FAB 2006–03. as proposed, based on the Department’s NOIA. This category includes many of Given the lack of consensus among the reevaluation of the combined NOIA the covered documents that were listed commenters, and the Department’s concept in light of commenters’ many in the proposal, for example, an SAR, an concern that an annual NOIA may not ideas and points of view. Paragraph (i) annual funding notice, a QDIA notice, effectively promote covered individuals’ continues to provide that plan an annual (but not quarterly) pension access to and review of covered administrators can furnish one annual benefit statement, and annual documents that will not be posted until NOIA that incorporates or combines the investment-related information required months later, it makes sense to treat content required by paragraph (d)(3) of by paragraph (d)(2) of the Department’s these recurring covered documents the rule with respect to more than one § 2550.404a–5 regulation. In response to differently than other recurring document. As opposed to the proposed public comments, this new category also documents. Accordingly, a separate list of seven covered documents, includes information that must be NOIA must be furnished for each of though, the group of documents for furnished annually to comply with which a single annual combined NOIA paragraph (c) of the 404a–5 regulation, 65 Section 110 of ERISA permits the Secretary to is permitted has been revised. for example the general plan prescribe for pension plans alternative methods of As revised, paragraph (i) of the final information in paragraph (c)(1)(i) or the complying with any of the reporting and disclosure rule permits one annual combined description of fees for plan requirements if the Secretary finds that (1) The use of the alternative method is consistent with the NOIA that incorporates the content administrative services in paragraph purposes of Title I of ERISA, provides adequate required by paragraph (d)(3) with (c)(2)(i)(A). disclosure to plan participants and beneficiaries, respect to four categories of documents Paragraph (i)(3) of the final rule deals and provides adequate reporting to the Secretary; and information. The first category is with the third category of permissible (2) application of the statutory reporting and the SPD, as required pursuant to section disclosure requirements would increase costs to the documents. This category includes any plan or impose unreasonable administrative covered document ‘‘if authorized in burdens with respect to the operation of the plan; the Department’s view these disclosures warrant writing by the Secretary of Labor, by and (3) the application of the statutory reporting separate notice. regulation or otherwise, in compliance and disclosure requirements would be adverse to 64 See Code sections 401(k)(13)(E), 414(w)(4), and the interests of plan participants in the aggregate. 401(k)(12)(D); see also FAB 2008–03 as to with section 110 of the Act.’’ This Section 110 provides both procedural and furnishing the Code notices with the Department’s category is intended to provide the substantive requirements that the Department QDIA notice. Department with flexibility to incorporates by reference.

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these covered documents. The other providers perform tasks necessary hyperlinks and website postings. In fact, Department intends, however, to give to maintain and improve the website on even commenters who generally oppose further consideration to this issue in the which covered documents are posted. electronic disclosure as a default, future, and reserves the ability to take These situations for the most part will nonetheless argue that directly sending action pursuant to paragraph (i)(3) of the be foreseeable, however, so plan covered documents is preferable to, and final rule, discussed above. administrators should take care to more protective than, a notice-and- ensure that resulting service disruptions access framework. According to these (8) Reasonable Procedures for are reasonable. Another commenter commenters, direct delivery is Compliance suggested that the Department include a preferable because website access may The Department included a provision more specific parameter for how long require multiple steps (logons, in the proposal to ensure that plan the documents may be ‘‘temporarily’’ passwords, opening hyperlinks, etc.) administrators would not violate their unavailable; for example, what if the which, in their opinion, could result in disclosure obligations under ERISA problems occur during a blackout or a burdensome process that some when, for a variety of reasons beyond similarly critical timeframe? The individuals may not pursue. A the control of the plan administrator, Department agrees that consideration significant benefit of direct delivery is there may be temporary interruptions in should be given to facts and immediate access to covered the availability of covered documents circumstances surrounding failure and documents, while avoiding accessibility on a website. Paragraph (j) of the that covered documents may be issues such as firewalls and forgotten proposal explained that, if certain unavailable for only a ‘‘reasonable’’ passwords. Further, some plan requirements are satisfied, the period of time. The final rule has been administrators also may want to provide conditions of the safe harbor are also modified accordingly. electronic delivery but cannot support, satisfied, notwithstanding the fact that or have logistical concerns with (9) Direct Delivery Via Electronic Mail covered documents are temporarily supporting, a website. unavailable for a period of time in the In response to a considerable amount The Department is persuaded by the manner required by § 2520.104b–31 due of commentary on the proposal, the broad range of commenters supporting to unforeseeable events or Department is persuaded that the the direct delivery of covered circumstances beyond the control of the proposed framework for disclosure documents. Therefore, the final rule plan administrator. The plan would be enhanced by allowing the includes a new provision, in paragraph administrator must have reasonable delivery of covered documents to (k), which allows plan administrators to procedures in place to ensure that the covered individuals via email, with the furnish covered documents directly to covered documents are available in the covered document attached, in addition covered individuals using email, in manner required by § 2520.104b–31. In to allowing plan administrators to contrast to the proposal, which the event that covered documents are furnish covered documents on an permitted emails to covered individuals temporarily unavailable, the plan internet website. As proposed, the safe with links to covered documents. As administrator must take prompt action harbor required that covered documents explained below, although it is set forth to ensure that the documents become be posted on a website; the proposal did in paragraph (k), the direct delivery available in the manner required by not specifically provide for (and its provision relies on cross-references to § 2520.104b–31 as soon as practicable requirements did not accommodate), for other provisions of the final rule to following the earlier of the time at example, the furnishing of an email to ensure that it maintains the applicable which the plan administrator knows or a covered individual that includes an requirements and protections of the reasonably should know that the attached PDF or similar version of a notice-and-access framework.66 The documents are temporarily unavailable. covered document. Providing covered Department believes that this new Commenters generally agreed that, by individuals with an email that includes provision better addresses commenters’ including this relief from potential an attached covered document is, requests for a direct delivery alternative, liability, the Department fairly however, functionally similar to while ensuring that there are sufficient recognized the practical reality of providing covered individuals with an safeguards and other requirements temporary technical disruptions in email that includes a website link to a necessary for application of the final modern times while at the same time covered document. For the reasons rule when a plan administrator prefers including sufficiently rigorous discussed below, the Department has delivery by email of the actual covered standards to make sure that, as a general decided that direct delivery will provide documents (as opposed to delivery by matter, important ERISA information is covered individuals with comparable email of hyperlinks to a website that available to participants and access to covered documents. includes the covered documents). beneficiaries when they need it. A large number of commenters asked Paragraph (k) provides that, A few commenters nonetheless made the Department to clarify, in the final notwithstanding any other provision of practical suggestions relating to the rule, that the safe harbor also applies to the safe harbor, a plan administrator circumstances under which this relief the direct furnishing of documents in will satisfy ERISA’s general furnishing should be triggered, and for how long electronic form. These commenters obligation by using an email address to the relief should be available. One believe the rule would be improved if furnish a covered document to a commenter pointed out that covered plan administrators are not limited to covered individual provided that the documents also may periodically be sending to covered individuals an email offline for technical maintenance, with a website address or a hyperlink to 66 The final rule’s website accessibility, upgrades, or similar activities to a covered document that is posted on a maintenance, and other requirements do not apply to direct delivery by email. Paragraph (k) does, maintain or improve the website. The website, but instead could also send an however, incorporate the relevant substantive Department agrees that plan email to covered individuals with requirements of paragraph (d), as well as the administrators should not fail the safe covered documents in the body of or as requirements of paragraphs (f), (g) (except the harbor during such times, and added the an attachment to the email. Commenters cautionary statement), and (h). Paragraph (k)(3) also includes formatting and searchability requirements concept of ‘‘technical maintenance’’ to believe that this form of delivery is similar to those imposed by paragraph (e). These paragraph (j) to address these reasonable equally effective, and, for some cross-references are discussed in greater detail in situations in which systems staff and individuals, perhaps preferable to this section.

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requirements of paragraph (k) are from employment) of the rule. provision is optional, or later, if satisfied. Although an electronic Administrators who use direct email necessary to safeguard plan participants address for purposes of defining a delivery pursuant to paragraph (k) are and beneficiaries from potential harm if ‘‘covered individual’’ in paragraph (b) of not required to include the cautionary plan administrators rely on the safe the rule is broader, for example statement required in paragraph (g) (i.e., harbor too soon. encompassing mobile telephone a statement that the covered document Nearly all commenters on this numbers, paragraph (k) is limited to is not required to be available on the provision asked the Department to allow delivery to an electronic address that is website for more than one year or, if plan administrators to rely on the safe an email address. Specifically, later, after it is superseded by a harbor as soon as possible. Further, paragraph (k)(1) requires that the subsequent version of the covered since publication of the proposal, covered document be sent to a covered document), because plan administrators governments, industries, and workers individual’s email address no later than who use paragraph (k) are not required globally have had to respond to the the date on which the covered to maintain a website that would retain coronavirus disease 2019 (COVID–19) document must be furnished under the covered documents that are outbreak, which President Donald J. ERISA. Paragraph (k)(2) clarifies that, delivered directly via email. Trump declared a National Emergency because the covered document will be The Department notes that because on March 13, 2020. The ability of plan furnished directly, the plan this method of delivery does not require administrators to use this rule will administrator does not need to comply that plan administrators furnish an greatly assist employers, workers, and with paragraph (d) and send an NOIA. NOIA, the corresponding provision of the retirement plan industry in Rather, the plan administrator must the rule in paragraph (i) does not apply managing the effects of COVID–19. send an email that (i) includes the either. Paragraph (i), discussed above, Specifically, enhanced electronic covered document in the body of the allows the combination of content of delivery will immediately alleviate email or as an attachment; (ii) includes certain covered documents on one, some of the current disclosure-related a subject line that reads: ‘‘Disclosure annual NOIA. The Department problems being reported by a great About Your Retirement Plan’’; (iii) anticipates that, although the annual many retirement plans. Many retirement includes the information described in NOIA concept does not apply when plan representatives and their service paragraph (d)(3)(i)(C) if the covered covered documents are delivered providers, for example, have indicated document is an attachment directly, plan administrators may to the Department that they are (identification or brief description of the wonder whether more than one covered experiencing increased difficulties and, covered document), paragraph document can be attached to one email, in some cases, an inability to furnish (d)(3)(i)(E) (statement of right to paper especially for annually required or other ERISA disclosures in paper form. The copy of covered document), paragraph covered documents that the plan reported problems, which are likely to (d)(3)(i)(F) (statement of right to opt out administrator wishes to send at the persist for the foreseeable future, of electronic delivery), and paragraph same time. Plan administrators should include temporary or permanent closure (d)(3)(i)(G) (a telephone number); and apply the same standard in this case of printing and mailing centers, and (iv) complies with paragraph (d)(4)(iv) that would apply if documents were to disruptions in paper supply chains, (relating to readability). Paragraph (k)(2) be furnished on paper. In some cases among others. The infrastructure ensures that the substantive information documents must be furnished necessary to deliver information separately, the required timing for electronically in this country, however, required by paragraph (d) is provided in different documents does not align, or remains largely intact. a clear manner to those covered the content of a particular document Given that it is a safe harbor, and that individuals who receive disclosures may not be combined with other plan administrators must be in directly under paragraph (k). documents. But the Department often compliance with all requirements before Similar to paragraph (e)’s permits plan administrators to furnish relying on the safe harbor, there is no requirements for covered documents required disclosures at the same time harm, and considerable benefits, posted on a website, paragraph (k)(3) (e.g., in the same envelope, the associated with moving up the requires that the covered document be ‘‘envelope rule’’). In that case, plan applicability date, especially for (i) written in a manner reasonably administrators may treat the email to the employers and plan service providers as calculated to be understood by the covered individual as the ‘‘envelope’’ they work toward economic recovery average plan participant; (ii) presented and attach more than one document, as from COVID–19. To the extent reliance in a widely-available format or formats would otherwise be permitted. on the rule results in cost savings and that are suitable to be read online, other benefits, the Department should printed clearly on paper, and (10) Dates; Severability not delay these benefits. Commenters on permanently retained in electronic The Department proposed in the proposal suggested that the rule be format that satisfies the preceding paragraph (k)(1) of the rule that the new applicable on the same day that the final requirements in this sentence; and (iii) alternative method for disclosure rule becomes effective: Sixty days after searchable electronically by number, through electronic media, as finalized, its publication in the Federal Register. letters, or words. Finally, paragraph would be effective 60 days following Only one commenter explicitly (k)(4) mandates that the plan publication of a final rule in the Federal requested a delay in the application of administrator (i) take measures Register. The proposal included a the safe harbor, suggesting that a more reasonably calculated to protect the separate applicability date in paragraph appropriate timeline would be January 1 confidentiality of personal information (k)(2), providing that the new safe of the second year, rather than the first relating to the covered individual; and harbor would apply to employee benefit year, following the final rule’s (ii) comply with paragraphs (f) (relating plans on the first day of the first publication. to copies of paper documents or the calendar year following the publication The Department is persuaded that right to opt out); (g) (relating to the of the final rule in the Federal Register. there is no sound reason to delay the initial notification of default electronic The Department requested comments on anticipated benefits of this rule, delivery), except for the cautionary the extent to which this applicability especially because it is a safe harbor, statement; and (h) (relating to severance date should be sooner, given that the rather than a requirement, and it has

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now been revised based on rigorous structure (e.g., mergers, consolidations, Department is of the general view that, analysis and thoughtful stakeholder closings, acquisitions) of the plan to the extent a plan participant or input to ensure that it adequately sponsor, plan administrator, or plan beneficiary is a ‘‘covered individual’’ addresses appropriate policy goals and recordkeeper, in any case resulting in a who already is receiving disclosures concerns. Therefore, the Department has new recordkeeper. These commenters electronically pursuant to the safe aligned the effective and applicability requested guidance on how plan harbor (and therefore already received dates to be 60 days following today’s administrators and other plan an initial notice and is accustomed to publication in the Federal Register. fiduciaries could navigate these issues the notice-and-access delivery method This has been done in paragraph (l)(1), under ERISA and maintain compliance permitted by this safe harbor), a new rather than paragraph (k), due to the with the new safe harbor. initial notice is not necessary. addition of a new provision in A change in recordkeeper or plan (12) Transition Issues paragraph (k). Further, although the rule administrator is a rather common and is not effective or applicable until 60 very fact-specific event that may raise a (i) Delay in Superseding Prior days after its publication, the variety of issues under ERISA, including Subregulatory Guidance Department, as an enforcement policy, record retention, fiduciary, reporting, Although the 2002 safe harbor will not take any enforcement action and disclosure issues, that are generally remains in effect, the Department against a plan administrator that relies beyond the scope of this safe harbor occasionally has issued guidance in on this safe harbor before that date. The regulation, which addresses only a plan limited circumstances allowing, as a Department’s decision to provide this administrator’s obligation under ERISA non-enforcement policy or otherwise, non-enforcement policy supports the to furnish required disclosures. This the use of electronic delivery methods Federal government’s broader effort to becomes apparent when one considers other than the 2002 safe harbor. In the respond to COVID–19. The Department that these questions apply upon a preamble to the proposed rule, the understands the far-reaching effects of change in recordkeepers regardless of Department stated that although the COVID–19, and the non-enforcement whether the disclosures are furnished to new safe harbor would have no impact policy provides flexibility and may a physical address (in paper copy) or to on the current electronic delivery rule at reduce administrative burden on an electronic address (in electronic 29 CFR 2520.104b–1(c), the new safe employers and pension plan service copy). The same ERISA fiduciary harbor would, if finalized, supersede the providers during this unprecedented obligations that apply when changing relevant portions of this prior time. recordkeepers responsible for furnishing interpretive guidance. Specifically, the The final rule also includes, in paper disclosures will apply when relevant documents are FAB 2006–03, paragraph (l)(2), a severability changing recordkeepers responsible for FAB 2008–03 (Q&A 7), and Technical provision, which provides that if any furnishing electronic disclosures. Release 2011–03R (Dec. 8, 2011) (TR provision in the final rule is found to be Accordingly, the Department in this 2011–03R).68 invalid or unenforceable by its terms, or document declines to render an opinion The Department issued FAB 2006–03 as applied to any person or on the impact that changing a to help plan administrators comply with circumstance, or stayed pending further recordkeeper or plan administrator amendments to ERISA’s pension benefit agency action, such provision shall be could have, as a general matter, on the statement requirements made by the severable and the remaining portions of status of a plan under ERISA and the Pension Protection Act of 2006. In the rule would remain operative and safe harbor. Nothing in this safe harbor, relevant part, FAB 2006–03 provides available to plan administrators. Thus, if however, prohibits a plan administrator that plan administrators may satisfy a federal court were to find a specific from relying on the safe harbor in their obligation to furnish pension provision, for example one of the NOIA circumstances when the plan’s benefit statements by providing content requirements, to be legally recordkeeper transfers accumulated lists continuous access to benefit statement of electronic addresses and opt-out insufficient, then the remaining content information through one or more secure requirements of the NOIA would remain elections to a successor recordkeeper. websites. FAB 2006–03 included a applicable and in place. This makes sense because changing a variety of conditions, including recordkeeper would seem to have little (11) Changing Recordkeepers notification to participants and or no effect on the validity or operability beneficiaries explaining how to access Several commenters representing of a covered individual’s electronic their statements online. FAB 2008–03 recordkeepers and plan administrators address, in much the same way that later provided interpretive guidance on raised questions about whether and how changing recordkeepers would have no the Department’s final QDIA regulation, certain provisions of the final rule effect on a participant’s physical which includes an initial and annual would apply when a plan changes its mailing address or other contact notice requirement. The QDIA notice recordkeeper, plan administrator, or information. To the contrary, it is the may be combined with the Code’s notice both. For example, a number of Department’s belief that confusion to requirement for automatic contribution commenters asked whether the safe covered individuals, as well as arrangements in Code sections harbor allows a new recordkeeper to economic inefficiencies, are likely 401(k)(13)(E) and 414(w)(4). This FAB rely on a list of electronic addresses and results if participants lose their status as 2008–03 allows plan administrators that opt-out elections that are transferred covered individuals, resulting in a wish to furnish QDIA notices from the old recordkeeper, or whether return to paper delivery, solely because electronically to rely on either the the new recordkeeper must of the plan’s decision to change its Department’s 2002 safe harbor or the independently solicit or verify recordkeeper.67 Similarly, the electronic addresses and furnish new Treasury Department’s rule at 26 CFR 1.401(a)–21(c), relating to use of initial notifications under paragraph (g) 67 The Department nonetheless cautions that, to of the rule. Correspondingly, would the extent a plan administrator changes the plan’s covered individuals have to resubmit an recordkeeper based on incompetence, negligence, or reasonable steps to ensure that the transfer of all fraud on the part of the current recordkeeper, a plan plan records (not limited to electronic addresses opt-out request? Commenters also asked administrator (or other responsible plan fiduciary and opt-out records for purposes of this safe harbor) whether a plan’s safe harbor status is supervising the change in recordkeeper) may, as a adheres to the duties set forth in ERISA section 404. lost if there are changes in business fiduciary matter, have to intervene and take 68 84 FR 56894, at 56900, footnote 60.

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electronic media. Finally, TR 2011–03R is appropriate. Accordingly, for 18 individual under the safe harbor, even sets forth an interim enforcement policy months following the effective date of in the absence of documentation that regarding the use of electronic media to this final rule, plan administrators may such previously attained address was, in satisfy the disclosure requirements continue to rely on the guidance set fact, provided by such person to the under 29 CFR 2550.404a–5, the forth above. Thereafter, the relevant employer, plan sponsor, or plan participant-level disclosure regulation. portions of such guidance are administrator. TR 2011–03R allows plan superseded. Commenters suggested The requirement in paragraph (b) of administrators to furnish this transition periods generally ranging the final rule is intended to prevent plan information through electronic media from one to two years. It makes sense administrators from obtaining and using (including through a continuous access that a transition period should be unreliable electronic addresses from website) if participants voluntarily greater than one year, because many sources that are too far removed from provide an email address and other plan and participant communication the covered individual. The Department conditions are satisfied. cycles are annual; allowing one full nonetheless appreciates the concern Many commenters objected to the communication cycle will enable plan raised by commenters as to the potential Department’s statement that this prior administrators to rely on their general challenge of verifying the source of guidance would be superseded. They communication cycle to solicit electronic addresses that a plan argued that the Department should electronic addresses from plan administrator already has in a plan’s codify and permanently preserve the participants and beneficiaries. An 18- records. For transition purposes, guidance to avoid unnecessary month extension accommodates this therefore, a plan administrator may rely disruptions to systems already in place cycle and adds a reasonable cushion for on these electronic addresses, provided in reliance on such guidance. Further, unanticipated events. The Department that the plan administrator acts commenters urged, if the Department is will take no enforcement action against reasonably, in good faith, and otherwise not willing to codify and permanently plan administrators who comply with complies with the requirements of the preserve the guidance, then the the requirements of such guidance to safe harbor. This includes compliance Department should, at a minimum, satisfy their delivery obligations for the with the new provision in paragraph (g) provide a transition period during specified disclosures during this of the final rule, which requires the which plan administrators could transition period. initial notice to identify the electronic continue to rely on this prior guidance, address to which NOIAs (or emails while they adjust to the terms of the (ii) Electronic Addresses Obtained Prior pursuant to paragraph (k)) will be new safe harbor. A transition period to the Effective Date of This Final Rule furnished under the safe harbor. The would provide more time for plan Some commenters raised an plan administrator also would have to administrators and plan service additional issue as to whether and how comply with the protections in providers to make necessary systems plan administrators may use electronic paragraph (f)(4) of the safe harbor, and other changes and thereby reduce addresses already in the plan’s which require a system to alert the plan the costs and administrative burden that possession before transitioning to the administrator of an invalid or would result from having to do so new safe harbor. These commenters inoperable electronic address. Absent immediately. explained that plan administrators and compliance with these provisions, the The Department disagrees that this sponsors in many cases already have Department has less assurance of the prior guidance should be maintained extensive lists of email addresses, which reliability of the electronic addresses at permanently. In the interest of creating they have compiled over time for issue, in which case the Department uniformity in the delivery of ERISA various employment-related reasons and may have a different view about relying disclosures electronically, the in the normal course of business on such addresses. Under these Department believes that, rather than a operations. These addresses most likely circumstances, and only as a transition piecemeal approach permitting different were provided to the plan administrator matter, a plan administrator may rely on standards for different documents in a or sponsor directly by the employee, or a preexisting list of electronic addresses variety of subregulatory documents, a assigned by the plan administrator or that is in existence on the effective date sounder approach is to require that, over sponsor for employment purposes. of this final rule. time, plan administrators who wish to However, prior to this new safe harbor, A plan administrator would not disclose information electronically plan sponsors and administrators have satisfy the good faith condition of this follow a consistent standard. The final had no reason, at least in the context of transition policy with respect to the use rule is intended to be such a standard, ERISA disclosure requirements, to of any particular electronic address from which, unlike the prior guidance, document the precise source of any such a list if the plan administrator has benefits from the regulatory process in particular electronic address. reason to know that such address is or which the Department engaged, Commenters were concerned that may be invalid, inoperable, or obtained including public notice and comment. paragraph (b) of the proposal, which from a person or entity other than the The Department is persuaded, however, required that an electronic address be participant, beneficiary, or employer, or that it may be unnecessarily disruptive provided by the individual, would acquired outside of the employment and costly, as well as harmful, or at least prevent plan administrators from using context in which the plan exists. For confusing, to participants and such electronic addresses if they do not example, many commercial entities beneficiaries, if established disclosure have records that definitively indicate with diversified lines of business and procedures are suddenly invalid as of where or from whom the plan obtained affiliations serve as recordkeepers and the applicability date of the final rule. the electronic address. These plan administrators, within the meaning The Department agrees with commenters asked whether a plan of section 3(16) of ERISA, for multiple commenters that a reasonable transition administrator may treat electronic retirement plans. These entities may period, during which plan addresses already obtained as having acquire an electronic address for a administrators may continue to rely on been provided by the participant, person, who is plan participant, in the prior guidance as they make necessary beneficiary, or other individual entitled routine course of a business transaction system changes and acquire electronic to covered documents for purposes of unrelated to his or her retirement plan addresses to comply with the final rule, treating such person as a covered participation. The person for instance

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may have purchased an investment or 104(d)(1) of the E-SIGN Act and, in public health or safety, or state, local, or insurance product in his or her personal accordance with section 104 of the E- tribal governments or communities (also capacity. Although the address may be SIGN Act, the Department has referred to as ‘‘economically valid and operable, it was not provided determined that there is substantial significant’’); to the entity in the entity’s capacity as justification for this regulatory (2) Create a serious inconsistency or a plan administrator under section 3(16) exemption from the consent otherwise interfere with an action taken of ERISA. Therefore, this address may requirements of the E-SIGN Act because or planned by another agency; not be used under this transition policy. the rule is necessary to eliminate a (3) Materially alter the budgetary Commenters also explained that these substantial burden on electronic impacts of entitlement grants, user fees, commercial entities sometimes use one commerce and the rule will not pose a or loan programs or the rights and or more locator services or technologies material risk of harm to consumers. In obligations of recipients thereof; or to find and obtain electronic addresses the preamble to the proposed rule, the (4) Raise novel legal or policy issues for individuals. Although addresses Department requested comments as to arising out of legal mandates, the located through these services may be whether there are additional, or President’s priorities, or the principles valid and operable, they were obtained different, steps it could take to ensure set forth in the Executive Order. from a person other than the participant, that these proposal was consistent with The Department anticipates that this beneficiary, or employer, and perhaps the requirements of section 104(d)(1) of final regulatory action will likely have without the participant’s knowledge. In the E-SIGN Act. The Department stated economic impacts of $100 million or these examples, the electronic addresses that it was particularly interested in more in any one year, and therefore were obtained in a manner or from a receiving comments that provided meets the definition of an source that is too far removed from the suggestions or evidence related to ‘‘economically significant rule’’ within covered individual and the employment whether the proposed rules would (or the meaning of section 3(f)(1) of relationship to be sufficiently reliable would not) impose unreasonable costs Executive Order 12866. Therefore, the for use under the safe harbor. on the acceptance and use of electronic Department has provided an assessment records. The Department did not receive of the potential benefits, costs, and C. E-SIGN Act substantive commentary on these transfers associated with this final rule. For the reasons discussed below, questions in response to the proposed In accordance with Executive Order covered documents for purposes of this rule. The Department has determined 12866, this final rule was reviewed by final rule are exempt from the consumer that this final rule will not require (or OMB. Pursuant to the Congressional consent requirements of the Electronic accord greater legal status, or effect to) Review Act (5 U.S.C. 801 et seq.), OIRA Signatures in Global and National the use of any specific technology and has designated this rule as a ‘‘major Commerce Act, Public Law 106–229 that the rule is exempt from the consent rule,’’ as defined by 5 U.S.C. 804(2). (114 Stat. 464) (2000) (E-SIGN Act), and requirements of the E-SIGN Act. this rule provides an alternative method (2) Need for Regulatory Action of complying with the requirement that D. Regulatory Impact Analysis Technology has changed substantially covered documents be furnished in (1) Relevant Executive Orders for since the Department first published the writing. Section 101(c) of the E-SIGN Regulatory Impact Analyses 2002 safe harbor.71 Broadband and Act sets forth special protections that Executive Orders 12866 69 and wireless networks have expanded. More apply when a statute, regulation, or 13563 70 direct agencies to assess all people rely on email. Servers and other rule of law requires that costs and benefits of available regulatory personal computers have improved. information relating to a transaction be alternatives and, if regulation is Smartphones, tablets, and other mobile provided or made available to a necessary, to select regulatory devices have become predominant consumer in writing. Section 101(e) of approaches that maximize net benefits modes of communication. In 2003, one the E-SIGN Act provides that if a statute, (including potential economic, year after the existing safe harbor was regulation, or other rule of law requires environmental, public health and safety established, approximately 62 percent of that a contract or other record relating effects; distributive impacts; and households had one or more to a transaction in or affecting interstate 72 equity). Executive Order 13563 computers. In 2016, about 89 percent or foreign commerce be in writing, the emphasizes the importance of of households had a computer, legal effect, validity, or enforceability of 73 quantifying costs and benefits, reducing smartphone, or tablet. The share of an electronic record of the contract or U.S. adults who own a smartphone other record may be denied if the costs, harmonizing rules, and promoting flexibility. increased from 35 percent in 2011 to 81 contract or other record is not in a form 74 Under Executive Order 12866, percent in 2019. The share of that is capable of being retained and ‘‘significant’’ regulatory actions are households with internet access at home accurately reproduced for later reference subject to review by the Office of also increased, from 55 percent in by all parties or persons who are 75 76 Management and Budget (OMB). 2003 to 82 percent in 2016. entitled to retain the contract or other Section 3(f) of the Executive Order record. 71 defines a ‘‘significant regulatory action’’ 29 CFR 2520.104b–1(c) (2002). Under section 104(d)(1) of the E-SIGN 72 Jennifer Cheeseman Day, Alex Janus, and Act, a federal regulatory agency may as any regulatory action that is likely to Jessica Davis, Computer and Internet Use in the exempt, without condition, a specified result in a rule that may: United States: 2003, U.S. Department of Commerce, (1) Have an annual effect on the Economics and Statistics Administration, U.S. category or type of record from the economy of $100 million or more or Census Bureau (2005). consumer consent requirements in 73 adversely and materially affect a sector Camille Ryan, Computer and Internet Use in section 101(c) if the exemption is of the economy, productivity, the United States: 2016, American Community necessary to eliminate a substantial Survey Reports, ACS–39, U.S. Census Bureau, competition, jobs, the environment, burden on electronic commerce and will August 2018. 74 not increase the material risk of harm to Monica Anderson, Mobile Technology and 69 Regulatory Planning and Review, 58 FR 51735 Home Broadband 2019, Pew Research Center (June consumers. The final rule published (Oct. 4, 1993). 13, 2019). today is an alternative method of 70 Improving Regulation and Regulatory Review, 75 See Cheeseman Day et al., supra note 72. compliance which would satisfy section 76 FR 3821 (Jan. 21, 2011). 76 See Ryan, supra note 73.

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Consumers use the internet, SEC has issued several regulations on disturb the Department’s 2002 safe smartphones, and other electronic electronic disclosure.82 harbor for electronic delivery. devices for a wide range of activities, The ERISA Advisory Council has, According to the Private Pension Plan including for conducting financial over the years, recommended improving Bulletin, there were approximately transactions. According to a 2018 the 2002 safe harbor. The Council’s 710,000 private retirement plans, with survey, a majority of banked households 2017 report recommended a move over 137 million participants in 2017.90 used electronic banking services. toward electronic delivery.83 Electronic Many participants were already Slightly fewer than two-thirds accessed delivery, according to the report, is receiving disclosures electronically their accounts online in the past 12 more helpful to participants and under the Department’s 2002 safe harbor months, and about two in five accessed reduces disclosure costs.84 The for electronic delivery. Under the their accounts through their mobile Council’s 2009 report recommended Department’s new rule, plan phones.77 The most common mobile that the Department adopt electronic administrators will have still more banking activities were checking emails disclosure regulations more aligned flexibility to electronically deliver from banks (44 percent) and checking with 26 CFR 1.401(a)–21(c).85 covered documents, either by furnishing account balances or recent transactions The Government Accountability an NOIA directing participants to a online (35 percent). Office (GAO) has also made website, or by furnishing covered As technological capabilities, internet recommendations to the Department. In documents directly by email. access, and internet use have increased, 2013, GAO recommended that SPDs and (3) Impacts other government agencies have issued SMMs be posted on continuous access rules encouraging wider use of websites.86 GAO also recommended The Department expects the final rule electronic disclosure. The Social adding ‘‘clear, simple, brief highlights’’ to increase electronic delivery and save Security Administration no longer sends of required disclosures.87 GAO noted money by reducing the production and mailing costs associated with paper paper statements to most workers. that ‘‘the quantity of information disclosures. The Department estimates Instead, workers register on the diminishes the positive effects.’’ 88 that it costs plans approximately $514 Administration’s website for a ‘‘my On August 31, 2018, President 89 million annually to mail seven specific Social Security’’ account to access their Trump’s Executive Order 13847 disclosures.91 The Department estimates statements.78 The TSP uses paperless instructed the Department to make that switching to electronic disclosures delivery as the default for its quarterly retirement plan disclosures required will likely save plans $419 million in statements.79 Annual TSP statements under ERISA more understandable and the first year. Such savings would be are available both on a website and useful for participants, while reducing partly offset by the estimated $232 delivered by mail unless an individual the costs and burdens imposed on plan sponsors. The Executive Order also million plans may pay to maintain requests only electronic annual websites, prepare NOIAs, and produce statements. TSP reported that electronic directed the Department to explore increasing electronic disclosures, to and distribute initial notifications. paperless delivery saved about $7 to $8 These added costs bring net savings to million in 2006.80 On October 20, 2006, improve their effectiveness and reduce costs and burdens. $187 million, a 36 percent reduction the Treasury Department and the IRS from the current $514 million burden. published 26 CFR 1.401(a)–21, setting In October 2019, the Department responded to Executive Order 13847 by In the second year, net savings increase forth standards for electronic notices to $338 million, a 66 percent reduction. and participant elections with respect to publishing a proposed rule to establish an alternative electronic disclosure safe Over 10 years, the new rule saves retirement plans and similar employee approximately $3.2 billion net, 81 harbor. The proposed rule does not benefit arrangements. Similarly, the annualized to $371 million per year

82 77 E.g., Optional Internet Availability of 2017 FDIC National Survey of Unbanked and 90 Private Pension Plan Bulletin, Abstract of 2017 Underbanked Households, Federal Deposit Investment Company Shareholder Reports, 83 FR 29158 (June 22, 2018); Internet Availability of Proxy Form 5500 Annual Reports, Employee Benefits Insurance Corporation, October 2018, https:// Security Administration, September 2019, at 2, www.fdic.gov/householdsurvey/. Materials, 72 FR 4148 (Jan. 29, 2007); and Updated Disclosure Requirements and Summary Prospectus https://www.dol.gov/sites/dolgov/files/EBSA/ 78 See Frequently Asked Questions, Social for Variable Annuity and Variable Life Insurance researchers/statistics/retirement-bulletins/private- Security Administration, https://faq.ssa.gov/en-us/ Contracts, Investment Company Act Release No. pension-plan-bulletins-abstract-2017.pdf. Topic/article/KA-01741. The Social Security 33814 (Mar. 11, 2020). 91 Pursuant to paragraph (i) of the proposed rule, Administration does, however, mail paper social 83 seven disclosures could be included in a single security statements to workers age 60 and older if Mandated Disclosure for Retirement Plans— Enhancing Effectiveness for Participants and annual combined NOIA. Those seven disclosures they do not receive social security benefits and they were the SPD, SMM, SAR, annual funding notice, have not yet set up a ‘‘my social security’’ account. Sponsors, ERISA Advisory Council on Employee Welfare and Pension Benefit Plans, Nov. 2017, at 404(a)(5)/404(c) disclosure, annual QDIA notice, 79 5 CFR 1640.6 (2003) (‘‘The TSP will furnish the 34, https://www.dol.gov/sites/dolgov/files/EBSA/ and pension benefit statement. In response to information described in this part to participants by about-ebsa/about-us/erisa-advisory-council/2017- public comments, however, the Department revised making it available on the TSP website. A mandated-disclosure-for-retirement-plans.pdf. paragraph (i) in the final rule. As a result, some of participant can request paper copies of that 84 Id. at 17. these seven disclosures can be no longer included information from the TSP by calling the ThriftLine, in a single annual NOIA. For example, a single 85 Advisory Council Report on Promoting submitting a request through the TSP website, or by annual combined NOIA does not include a SMM Retirement Literacy and Security by Streamlining writing to the TSP record keeper’’). See also Federal and a quarterly pension benefit statement. Despite Disclosures to Participants and Beneficiaries, Thrift Savings Plan: Customer Service Practices this change in the final rule, for the purposes of ERISA Advisory Council on Employee Welfare and Adopted by Private Sector Plan Managers Should estimating cost savings associated with this new Pension Benefit Plans, 2009, https://www.dol.gov/ Be Considered, U.S. Government Accountability safe harbor, the Department included all seven agencies/ebsa/about-ebsa/about-us/erisa-advisory- Office, GAO–05–38, Jan. 2005, at 12, n. 21, http:// disclosures because all these seven disclosures can council/2009-promoting-retirement-literacy-and- www.gao.gov/new.items/d0538.pdf (providing still be delivered electronically, just not with one security-by-streamlining-disclosures-to- statistics on cost savings experience with TSP). single annual combined NOIA. In its burden participants-and-beneficiaries. 80 See Minutes of the Meeting of the Board estimates, the Department accounted for the fact 86 Members, Federal Retirement Thrift Investment Private Pensions: Clarity of Required Reports that some plan administrators will email NOIAs Board (Feb. 20, 2007), https://www.frtib.gov/ and Disclosures Could Be Improved, Government multiple times per year under the final rule instead MeetingMinutes/2007/2007Feb.pdf. Accountability Office, GAO–14–92, Nov. 2013, at of emailing one single annual combined NOIA, as 81 Use of Electronic Media for Providing 40, https://www.gao.gov/assets/660/659211.pdf. would have been permitted under the proposal. The Employee Benefit Notices and Making Employee 87 Id. at 41. Department updated these burden estimates using Benefit Elections and Consents, 71 FR 61877 (Oct. 88 Id. at 29. 2019 wage rates and 2017 retirement plan-related 20, 2006). 89 83 FR 45321 (Aug. 31, 2018). data.

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(using a 3 percent discount rate).92 delivery failures for NOIAs over time, as commenter reported 58 percent of Using a perpetual time horizon (to allow plan administrators develop and defined contribution (DC) plan the comparisons required under E.O. maintain the most up-to-date lists of participants accessed plan information, 13771), the annualized cost savings in covered individuals’ electronic including legal notices, electronically. 2016 dollars are $319 million at a 7 addresses. (The Department based its For its cost savings estimate, the percent discount rate.93 Since long-term current projection on the assumption Department used the same methodology projections are inherently uncertain, that the rates of undelivered NOIAs will it uses to estimate the cost of however, the Department cautions remain constant over the 10-year distributing printed disclosures for against relying on the perpetual period.) If undelivered NOIAs decrease, information collections subject to the annualized cost savings estimate for production and mailing costs for Paperwork Reduction Act.100 purposes other than the required covered documents will decrease and Preparation costs generally include analyses under E.O. 13771. The fast net cost savings will increase over the costs required to develop the content pace of technological innovation makes 10-year period. These cost savings may and format of disclosures. Distribution it especially difficult to project cost indirectly benefit covered individuals, costs generally include materials, savings into the distant future. as they may defray plan expenses and printing, and mailing costs as well as lower direct or indirect participant fees. (i) 10-Year Cost Saving Projection burden hours associated with providing (ii) Cost Savings disclosures to participants and The Department based its projections beneficiaries. The Department’s on two assumptions: (1) The number of The Department’s cost savings estimates assume that preparation costs participants will grow at 0.5 percent per estimates understate the potential will be unchanged by the final rule, 94 year; and (2) the percentage of savings generated from this final rule, because the rule does not change the participants opting out of the default because they account for the production content disclosures. electronic delivery system will and mailing costs of only seven covered gradually decrease, from 18.5 percent to documents.96 The seven documents are (iii) Quantified Costs 7.5 percent, over the 10-year period.95 among the most costly because they While the Department expects the The Department’s 10-year projection affect a lot of plans and plans must final rule to reduce costs associated may overstate cost savings because the provide them to participants regularly.97 with distributing covered disclosures, number of participants receiving But the final rule will cover other these savings are partly offset by costs electronic disclosures could increase on pension documents, such as blackout related to the following requirements: its own under the 2002 safe harbor, even notices, which are provided irregularly (1) Furnishing the NOIA (paragraph without this final rule. Similarly, plans because they are triggered by certain (d) of the final rule); could cut costs related to producing and events. The cost savings associated with (2) Providing the website for covered mailing paper disclosures even without these disclosures is relatively small individuals to access covered this final rule. On the other hand, the because they affect far fewer plans and documents (paragraph (e) of the final Department’s 10-year projection may individuals. For that reason, the rule); and understate savings if there are a smaller Department estimated cost savings using (3) Distributing the initial than assumed number of electronic only the seven regularly distributed, notifications of default electronic covered documents. If all covered delivery and right to opt out in paper to 92 The net cost savings will be an estimated $2.6 documents are included, the cost each individual before he or she billion over 10-year period, annualized to $365 savings generated by the final rule will million per year, if a 7 percent discount rate is becomes a covered individual applied. likely be larger. (paragraph (g) of the final rule). 93 The cost savings in years 11 and beyond are In estimating cost savings, the The Department assumes plans will estimated using the same methodology as for years Department assumes that slightly more incur one-time start-up costs to develop 1 to 10, which is explained in the following section. than half (56 percent) of disclosures are 94 The U.S. Bureau of Labor Statistics projects that the NOIA and initial notifications. Such already delivered electronically under costs include ensuring the notifications total employment will grow at 0.5 percent annually 98 from 2018 to 2028. Based on this projection, the the 2002 safe harbor. According to one comply with final regulatory Department assumes that the total number of commenter, 40 to 50 percent of requirements. The Department also participants will also increase at 0.5 percent each participants receive disclosures assumes that costs for distributing year. See Kevin S. Dubina, Teresa L. Morisi, electronically, likely from plans relying Michael Rieley, and Andrea B. Wagoner, Projection NOIAs will be modest, because they overview and highlights, 2018–2028, Monthly Labor on the Department’s 2002 safe harbor. may be distributed electronically. Review, U.S. Bureau of Labor Statistics, October One service provider reported 62 However, the initial notification of 2019, https://www.bls.gov/opub/mlr/2019/article/ percent of participants elected default electronic delivery and right to pdf/projections-overview-and-highlights-2018- electronic delivery in 2018.99 Another 28.pdf. opt out would impose production and 95 The Department assumes that approximately 18 mailing costs. Plans that rely on the new 96 percent of participants currently receiving The seven covered documents are the SPD, SMM, SAR, annual funding notice, 404(a)(5)/404(c) email alternative, permitted under disclosures by mail will opt out of default paragraph (k) of the rule, will email electronic delivery in the first year and 16.2 percent disclosure, annual QDIA notice, and pension will opt out in the second year. The Department benefit statement. disclosures to participants rather than projects the opt-out rates will decrease gradually at 97 Out of these seven disclosures, all but one furnishing NOIAs. Certain types of rates consistent with exponential decay function, a (pension benefit statement) have associated plans will furnish NOIAs more often (t¥1) information collection requests under the * b , where a is the initial opt-out rate, 18 than other plan types, as required under percent, t is year, and b is the decay rate, 0.9 (= Paperwork Reduction Act. To estimate cost savings 16.2/18). The Department further projects that in attributable to this final rule, the Department the 10th year, only 7 percent of participants estimated the current cost burden associated with Strategies, prepared for The SPARK Institute, currently receiving paper disclosures by mail will pension benefits statements, although it is not a part November 2019, at 25, https:// continue to do so. Then the Department made an of the Department’s information collection www.sparkinstitute.org/wp-content/uploads/2019/ additional adjustment by adding 0.5 percentage inventory. 12/SPARK-Institute-Default-Electronic-Delivery- point annually to account for the requirement in 98 This is consistent with the assumption used for Works.pdf. paragraph (f)(4) of the final rule regarding invalid information collections. 100 The distribution costs were estimated using or inoperable electronic addresses for covered 99 Default Electronic Delivery Works: Evidence of the most recent data available, including updated individuals. For more detailed discussion, see Improved Participant Outcomes form Electronic 2019 wage rates and 2017 retirement-plan related Quantified Costs, below. Delivery of Retirement Plan Documents, Quantria data.

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paragraph (i) of the rule. For example, distributing and mailing the initial According to a recent poll of plan participant-directed DC plans must notice will be about $97 million.104 sponsors, the majority already have provide NOIAs more often than non Therefore, the Department estimates websites, in-house (70 percent) or via participant-directed DC plans, because that retirement plans will incur service providers (62.5 percent), and they must notify participants quarterly approximately $138 million in one-time many have both.108 One study suggests rather than annually. costs to develop and mail the initial that approximately 18 percent of profit The initial notification and right to notice. In subsequent years, the sharing and 401(k) plans did not opt out is a transitional notice that Department estimates that retirement provide any services via internet in informs participants who are existing plans will incur approximately $12 2017.109 Based on these comments and employees of changes in default million each year to deliver the initial study, the Department estimates that delivery system to electronic notice to new hires.105 approximately 25,000 plans currently delivery.101 Administrators must Paragraph (g) of the final rule do not have, directly or indirectly furnish this notice in paper form to each provides that the initial notice must through a plan service provider, a person before they become a covered identify the recipient’s electronic website where they can post the covered individual. The notice informs them address where NOIAs are to be documents.110 that covered documents will be delivered. Although this revision Although approximately 25,000 plans furnished electronically, that they have requires personalization of the notice, do not currently have a website, the the right to request paper copies of the the Department does not expect this Department expects the impact of covered documents free of charge, and change to significantly impact costs paragraph (e) of the final rule to be how they may exercise such rights. The because many plan administrators minimal, in part, because paragraph (k) Department anticipates that most plans already incorporate this process as of the final rule allows plans to furnish will rely on this final rule, delivering common business practice.106 covered documents by email. covered documents electronically to Paragraph (e) of the final rule requires Commenters recommended the direct participants who were not eligible plan administrators to ensure the delivery approach in paragraph (k) for a under the existing safe harbor without existence of a website at which plan number of reasons, one being that plans disrupting the current electronic participants can access covered may not currently have a website.111 delivery system under the Department’s disclosures. In the proposed rule, the The Department assumes plans that do 2002 safe harbor. Thus, plans are mostly Department assumed this requirement not have a website for posting the likely to furnish initial notices to those would impose modest one-time costs. covered documents will most likely participants who currently receive However, the Department was email the covered documents directly. disclosures by mail. particularly concerned about burdening The direct delivery option will likely Retirement plans will incur one-time small plans and so solicited comments ease the burden on small plans, as they costs to develop and design an initial regarding the fraction of plans, are less likely to have, or have access to, notice. Because the final rule clearly particularly small plans, that would a website. However, paragraph (k) of the describes the specific information need to develop or modify a website. final rule is still subject to the required of this notice, the Department One commenter claimed that small requirements of paragraph (f)(4) of the expects initial costs to be modest, about plans have websites and not burdened $40 million on aggregate assuming all by the proposed ‘‘notice and access’’ maintain a website to provide certain information retirement plans decide to rely on this approach. However, another commenter to participants and beneficiaries. Defined benefit final alternative.102 The Department suggested that small plans are less likely and nonparticipant-directed DC plans are not subject to 29 CFR 2550.404a–5. estimates that approximately 60 million to have their own websites. A different 108 Plan Sponsor Council of America (PSCA) retirement plan participants received commenter suggested that the impacts conducted a poll to plan sponsors in November the covered documents by mail in of paragraph (e) would vary by types of 2019 to obtain the plan sponsors’ perspectives on 2017.103 These participants could plans and that the vast majority of the proposed rule and received responses from 56 participant-directed DC plans already plan sponsors. potentially receive the initial notice 109 61st Annual Survey, Reflecting 2017 Plan from their plan administrators. have access to or actively maintain a Experience, Plan Sponsor Council of America, Assuming a one-page notice is mailed to website, while many defined benefit 2018. (In this survey, plan sponsors were asked to these 60 million participants, the plans or nonparticipant-directed DC indicate if any services—enrollment, plan inquiries, 107 contribution changes, balance inquiries, investment Department estimates the costs of plans may not. changes, loans, hardship distribution, retirement distributions, or no services—were provided to 101 For newly hired employees, the Department 104 This estimate is based on $36 million mailing participants via internet. Responding to this assumes they will receive the notice required by costs (approximately 60 million notices * $0.60) question, about 18 percent of plan sponsors paragraph (g) of the final rule in their new and $64 million production costs, assuming an indicated they did not provide any services to employee packets; thus, employers will incur only hourly rate of $64.11 for in-house mailing clerks participants through the internet. The Department negligible costs in subsequent years. (approximately 998,000 hours * $64.11). Then $36 used this as a proxy for plans that do not have a 102 The Department estimates that attorneys will million mailing costs and $64 million preparation website.) take approximately 296,000 hours to develop and costs are discounted at three percent, which lead to 110 According to Private Pension Plan Bulletin review the initial notice. Assuming an hourly rate $35 million and $62 million respectively. 2017, there were over 143,000 defined benefit plans of $138.41 for in-house attorneys, the Department 105 According to the Current Population Survey and nonparticipant-directed defined contribution estimates developing the initial notice will cost (CPS) in 2018, approximately 16.8 percent of wage plans. Applying an assumption of 18 percent, the approximately $41 million (295,636 hours * and salary workers aged 25 or older stayed with Department estimates approximately 25,984 $138.41). Then $41 million is discounted at three their current employers for a year or less. Based on (143,558 * 0.181) plans currently lack websites. percent, which leads to $40 million. this information, the Department estimates This estimate may understate the total number of 103 Information collection requests associated approximately 13 million workers will receive the plans that lack websites because the PSCA study with the SPD, SMM, SAR, and 404(a)(5)/404(c) initial notice each year as new hires. examined profit-sharing plans and 401(k) plans. As disclosures assume that approximately 56 percent 106 Because it contains personally identifiable discussed, most 401(k) plans are expected to have of participants electronically receive those information, such as email address, the Department their own websites. Therefore, the fraction of disclosures from plans that rely on the 2002 safe assumes employers will mail notice in a sealed defined benefit plans and nonparticipant-directed harbor. According to the 2017 Private Pension letter rather than a postcard, even though a postcard DC plans that lack websites would be likely higher Bulletin, there are approximately 137 million is a less expensive option. than 18 percent. participants. Therefore, the Department estimates 107 According to a commenter, this is because 29 111 The direct delivery provision in paragraph (k) that approximately 60 million participants (44 CFR 2550.404a–5 currently requires that is not subject to the website standards in paragraph percent of 137 million) receive disclosures by mail. participant-directed individual account plans (e) of the safe harbor.

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final rule, pertaining to invalid or addresses and update them. If an administrators will likely select the least inoperable electronic addresses. accurate electronic address cannot be costly and most efficient option. Therefore, plans that do not have found, plan administrators may treat Therefore, the Department assumes that software to detect invalid or inoperable those covered individuals as if they plan administrators will mail electronic addresses will likely incur opted out of electronic disclosure and documents when unable to locate a costs to add such software. furnish their documents via mail. covered participant’s electronic address. Paragraph (e)(2)(ii) of the final To meet the requirements of regulation establishes how long covered paragraph (f)(4), plan administrators For this regulatory impact analysis, documents must remain on a website. It may purchase software to detect the the Department assumes that the generally requires covered documents to validity and operability of electronic requirement to remediate failed delivery remain on the website for at least one addresses. The Department invited will increase the global opt-out rate by 116 year.112 Once a covered document is comments about such costs and 0.5 percentage points. The posted on a website, the Department received none. The Department assumes Department assumes that plan assumes that the storage cost of that, while most plans already have administrators will exercise due retaining such document on the website such features built into their current diligence by reaching out to participants is nominal.113 The Department requires electronic delivery systems, slightly less with invalid or inoperable electronic plan administrators to include a than 26,000 plans will purchase addresses rather than immediately cautionary statement in the NOIA software to comply with the treating them as having opted out of relating to how long the covered provision.114 The Department estimates electronic delivery. If true, the global document is required to be available on these costs will run approximately $8.8 opt-out rate should not increase over the website. The Department expects million per year.115 time. The 0.5 percentage point increase this statement can benefit both The Department assumes that before in the global opt-out rate is reflected in participants and plan administrators. mailing out covered documents to the the cost savings estimates for the seven The statement will encourage recipients of an undelivered NOIA, plan covered documents. participants to download covered administrators will attempt to resolve This final rule provides a issues that are relatively easy to fix, documents while they are available on comprehensive alternative to the 2002 such as redelivering bounced emails or the website rather than contacting plan safe harbor. As a result, many more reaching out to covered individuals to administrators to request them. Plan participants and beneficiaries may be administrators will benefit because they update electronic addresses. Plan easily covered. Although some plan will likely receive fewer document administrators may treat covered sponsors using the 2002 safe harbor may requests. individuals who are more difficult to Paragraph (f)(4) of the final rule locate, such as those who have switch entirely to the final rule, the requires plan administrators to take separated from service, as having opted Department assumes that most will certain actions when alerted that a out of electronic delivery. Although the maintain existing systems and use the covered individual’s electronic address Department acknowledges that plan final rule to cover individuals that fall has become invalid or inoperable. For administrators may spend time outside of the existing safe harbor. example, if an NOIA is returned as attempting to correct failed delivery, as (iv) Quantified Net Cost Savings undeliverable, the plan administrator provided in paragraph (f)(4) of the must try to locate the correct address. proposal, it does not have sufficient data The Department’s estimates of the net Accordingly, plans may incur costs to to quantify associated costs. The cost savings from the final regulations detect invalid or inoperable electronic Department assumes, however, that plan are summarized in Table 1 below.

TABLE 1—ESTIMATED COST SAVINGS ATTRIBUTABLE TO THE FINAL RULE [$ million]

Total over 1st Year 2nd Year 3rd Year 10 years

Cost Savings from Eliminating Printing & Mailing Costs:

112 As discussed above in section B, paragraph may find it appropriate to provide enhanced from $10 per month to $320 per month, depending (e)(2)(ii) of the final rule does not alter a plan security features for participants despite increased on the volume and sophistication of features administrator’s general recordkeeping requirements costs.) Also, plan administrators that currently store available. Taking the average of basic level prices under ERISA. documents electronically to satisfy general of these five products, the Department assumes that 113 As more documents remain on a website, recordkeeping requirements under ERISA may it would cost $28.20 per month ($338.40 per year) plans may need more electronic storage. However, already have sufficient electronic storage space; to subscribe. Assuming 25,984 plans would storage space prices have decreased substantially as thus, the burden increase from this condition would purchase this type of product, the Department cloud services become more widely available. In not be significant. estimates that the aggregate costs will total $8.8 terms of adding storage space cloud services are 114 The Department understands that software is million (25,984 plans * $338.40). available, on average, at a rate of $0.018 to $0.021 commercially available to produce a list of email 116 One industry report indicates that a well- per GB per month. Some estimate that addresses that have bounced back with the owners’ targeted and maintained email list yields, on approximately 250,000 PDF files or other typical name, export the list into different formats, and, in average, a 1.06% bounce rate. (See Update Email office documents can be stored on 100GB. certain circumstances, remove invalid email Marketing Benchmarks for 2020: By Day and Time, Accordingly, the Department does not believe addresses from the list. Such software also Campaign Monitor, https:// electronic storage will significantly increase cost generates and reports relevant statistics such as www.campaignmonitor.com/resources/guides/ burden. (For more detailed pricing information of bounce rate, open rate, and click-through rate. Some email-marketing-benchmarks/.) EBSA’s newsletter three large cloud service providers, see https:// software automatically re-attempts delivery email deliveries yield a 4% bounce rate. Although cloud.google.com/products/calculator; or https:// depending on the reasons of failed delivery. Given the Department’s assumed 0.5% bounce rate is azure.microsoft.com/en-us/pricing/calculator/; or the lack of data, the Department used the lower than the information discussed here, the https://calculator.s3.amazonaws.com/index.html. percentage of plans without their own websites as Department believes that, in general, plan Augmenting other features such as enhanced a proxy for plans that lack email tracking capability. administrators are able to generate and maintain security services may increase costs of cloud 115 The Department gathered pricing information more accurate and current electronic addresses for service. However, plan administrators sometimes for five commercial software packages that ranged covered individuals.

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TABLE 1—ESTIMATED COST SAVINGS ATTRIBUTABLE TO THE FINAL RULE—Continued [$ million]

Total over 1st Year 2nd Year 3rd Year 10 years

Summary Plan Description ...... $68 $69 $68 $663 Summary of Material Modification ...... 18 18 18 172 Summary Annual Report ...... 61 61 60 585 Annual Funding Notice ...... 40 40 40 390 404(a)(5)/404(c) Disclosure ...... 106 106 105 1,021 Annual QDIA Notice ...... 16 16 16 156 Pension Benefits Statement ...... 110 109 109 1,058

Subtotal: Gross Cost Savings [1] ...... 419 419 416 4,046

Costs Imposed by the Final Rule: Website ...... ¥27 ¥27 ¥26 ¥240 Initial Notification and Right to Opt Out ...... ¥138 ¥12 ¥12 ¥235 Notice of Internet Availability ...... ¥67 ¥42 ¥41 ¥404

Subtotal: Costs of the final rule [2] ...... ¥232 ¥81 ¥78 ¥880

Total Net Cost Savings: [1]–[2] ...... 187 338 338 3,166 Note: Totals in table may not sum precisely due to rounding. Total over 10 years and all other costs and cost savings estimates are discounted at three percent annually.

The estimated cost savings of each plans tend to have higher internet TABLE 2—ESTIMATED NUMBER OF covered disclosure reflects an access rates and may be more PARTICIPANTS CURRENTLY RECEIV- assumption about participant behavior. comfortable online, which could lead to ING PAPER DISCLOSURES The Department assumes that a lower opt-out rate.120 In projecting approximately 81.5 percent of cost savings for 10 years, the Number of participants who currently receive Department assumes that by the 10th Disclosures participants (million) paper copies will switch to electronic year this opt-out rate will gradually documents, while the remaining 18.5 decrease to 7.5 percent of participants percent will choose paper.117 This Summary Plan Description ... 19 currently receiving paper.121 Summary of Material Modi- assumption is based on the American Table 2 shows the Department’s fication ...... 17 Community Survey (ACS) estimate that Summary Annual Report ...... 45 about 82 percent of U.S. households had estimates of the number of participants Annual Funding Notice ...... 29 internet subscriptions in 2016.118 This who currently receive disclosures on 404(a)(5)/404(c) Disclosure .. 33 assumption may overstate the cost paper. Annual QDIA Notice ...... 17 savings because some participants with Pension Benefits Statement 50 internet access at home may prefer to receive paper copies, and thus opt Table 3 summarizes the Department’s out.119 On the other hand, this projected number of participants who assumption may understate the cost will receive disclosures electronically savings, because households with DC due to the final rule.

117 Among participants who currently receive better if financial information is presented in paper percent. (See Quantria Strategies, supra note 97, at paper disclosures by mail (rather than electronically form. 3, 5.) Note that in these studies, ‘‘use the internet’’ under the existing 2002 safe harbor), the 120 According to one study, among households includes access to the internet at home, work or Department assumes 18.5 percent of these owning DC plan accounts, 92 percent used the other locations. Thus, the share of households using participants will opt out of electronic delivery internet at home, work, or other location in 2018. the internet in these studies are higher than the under this final rule and receive paper copies. This (See 2019 Investment Company Fact Book, A share of households accessing the internet at home 18.5 percent global opt-out rate reflects a 0.5 Review of Trends and Activities in the Investment that the Department relies on in estimating opt-out percentage point upward adjustment due to failed Company Industry, Investment Company Institute rates. (April 2019), https://www.ici.org/pdf/2019_ deliveries of internet availability NOIAs, such as 121 Based on the American Community Survey factbook.pdf.). Another survey suggests that 99 bounced emails. Without this adjustment, the global (ACS) data from 2016 and 2017, the Department opt-out rate would be 18 percent, which is percent of respondents have a computer at home or work that is connected to the internet, and 84 assumes the opt-out rate for the 2nd year is 16 consistent with the data from American Community percent agree that employers can provide retirement percent. The Department’s opt-out rate projections Survey 2016. plan information electronically if they can opt out are based on these two recent years of ACS data 118 Ryan, supra note 73. at any time. This implies approximately 83 percent and, while the rates gradually decline each year, 119 Some commenters argued that individuals, (99% * 84%) have internet access and would agree they do not reach zero at any point in the future. particularly retirees and individuals older than 55, to receive plan information electronically, which is This also reflects the 0.5 percentage point upward prefer paper and, in certain cases, comprehend similar to the Department’s assumption of 82 adjustment due to bounced emails.

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TABLE 3—PROJECTED NUMBER OF PARTICIPANTS RECEIVING DISCLOSURES ELECTRONICALLY DUE TO THE FINAL RULE [million]

Disclosures 1st Year 2nd Year 3rd Year 10th Year

Summary Plan Description ...... 16 16 17 19 Summary of Material Modification ...... 14 15 15 17 Summary Annual Report ...... 36 37 38 43 Annual Funding Notice ...... 23 24 25 28 404(a)(5)/404(c) Disclosure ...... 27 28 28 32 Annual QDIA Notice ...... 14 14 15 17 Pension Benefits Statement ...... 41 42 43 48

Table 4 provides the estimated significantly lower than those of all DC digital divide because the gaps in average per-participant cost of plan account holding households (93 smartphone ownership are less distributing disclosures on paper. percent). prominent than in home internet access. Another group worth noting is For example, there is almost no TABLE 4—ESTIMATED AVERAGE PER- households connected to the internet disparity in smartphone ownership rates PARTICIPANT COST OF DISTRIBUTING only through smartphones. Racial/ by race. According to a 2019 survey, DISCLOSURES ON PAPER ethnic minorities and low-income Whites, Blacks, and Hispanics own households are overrepresented in this smartphones at nearly the same rate (82 group.124 In 2015, approximately 8 percent, 80 percent, and 79 percent, Disclosures Per-participant cost percent of households in the United respectively).126 States were ‘‘handheld- device-only’’ For participants without ready Summary Plan Description ... $4.48 households, but 16 percent of internet access, this final rule may Summary of Material Modi- fication ...... 1.28 households where the head of the create additional impediments to Summary Annual Report ...... 1.72 household obtained a high school accessing critical plan information. Annual Funding Notice ...... 1.79 diploma or less were handheld-device- Those who fail to opt out and request 404(a)(5)/404(c) Disclosure .. 4.07 only households. In contrast, only 3 paper documents will have to leave Annual QDIA Notice ...... 1.18 percent of households where the head of home (e.g., visit a public library or the Pension Benefits Statement 2.79 the household obtained a bachelor’s home of a friend or family member) to degree or higher were handheld-device- access plan information. One of the (v) Non-Quantified Costs (Potential only households.125 Although Department’s goals in establishing the Adverse Impacts) connected to the internet, these final framework was to be certain that, While overall, 82 percent of U.S. households may not be able to fully regardless of delivery method, covered households had access to the internet at harness the efficiency, capacity, and individuals who wish to receive paper home in 2016, the following groups had convenience of the internet. Therefore, copies would be able to do so without lower rates: Limited English speaking accessing disclosures online for these undue burden. For this reason, the final households (63 percent), households households may not be as convenient as rule allows for global opt out. That is, with income less than $25,000 (59 for other households. a covered individual who prefers to In response to numerous comments, percent), households where the head of receive all covered documents in paper the Department added paragraph (e)(4) the household is age 65 or older (68 may choose to do so through a single to the final rule, which defines percent), Black households (73 percent), request. ‘‘website’’ to include internet websites households in nonmetropolitan areas of If covered individuals in groups with and other electronic-based information the South (69 percent), and households low internet access rates fail to request repositories, such as mobile where the head of the household paper copies of covered documents or applications. With this change, the obtained a high school diploma or less exercise their opt-out rights, the Department believes that the final rule (56 percent).122 Responding to these negative impacts they suffer may offset can better accommodate advances in relatively low rates, some commenters some benefits of this final regulation. technology. This change also requires pointed out that households with DC The Department does not have sufficient that covered documents delivered plan accounts tend to have higher data to quantify these negative impacts. through mobile applications be internet access rates. For example, an If these unintended consequences occur, presented in a format that can be read ICI report found that among households plan administrators may take steps to using a handheld device. Consequently, with DC accounts, 79 percent with limit their impact. Such steps may these handheld-device-only households income less than $50,000 and 81 include reaching out to these groups; will be able to access their plan percent with a senior (65 or older) head communicating the plan’s electronic information with ease. Ensuring of the household use the internet at disclosure policy effectively; providing handheld-device-only households are home, work, or other locations.123 sufficient time for participant education able to access the same information as Although these internet access figures before implementing electronic other households may help bridge the are only slightly lower than those of all disclosure changes; and employing U.S. households (82 percent), they are simple processes for requesting print 124 Ryan, supra note 73. documents, opting out of electronic 125 Jamie M. Lewis, Handheld Device Ownership: disclosure, and establishing and 122 Ryan, supra note 73. Reducing the Digital Divide? Social, Economic, and 123 2019 Investment Company Fact Book, A Housing Statistics Division, U.S. Census Bureau, resetting passwords. Such steps might Review of Trends and Activities in the Investment Working Paper 2017–04, Mar. 2017, .https:// Company Industry, Investment Company Institute www.census.gov/content/dam/Census/library/ 126 Mobile Fact Sheet, Pew Research Center, June (April 2019), https://www.ici.org/pdf/2019_ working-papers/2017/demo/SEHSD-WP2017- 12, 2019, https://www.pewresearch.org/internet/ factbook.pdf. 04.pdf. fact-sheet/mobile/.

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help ensure that the cost savings mail (31 percent).129 Similarly, other their higher deferral rates and larger discussed above is realized without studies found that participants prefer to account balances. One study burdening vulnerable groups. receive communications related to their acknowledged this possibility, yet still As with all agencies facing heightened benefits through electronic media such contended that electronic delivery could cybersecurity concerns, the Department as personal emails or websites.130 Based nudge investors towards increased recognizes that increased electronic on these studies, the Department savings.131 The Department agrees that disclosures may expose covered reasonably believes that the final rule participants can be nudged to save more participants’ information to intentional generally lines up with most as they interact more with various or unintentional data breach. Paragraph participants’ preferences. And since website tools and gain more financial (e)(3) of the proposal requires the plan participants retain the right to opt out of knowledge. The Department is administrator to take measures electronic delivery, those who prefer encouraged to find that many plan reasonably calculated to ensure that the paper disclosures are adequately administrators now offer on their website protects the confidentiality of protected under the final rule. websites various financial education tools, including retirement income personal information relating to any (vi) Benefits covered individual. As required under planning tools and budgeting tools. ERISA section 404, the Department The final rule will not require plan However, it is difficult to compare the expects that many plan administrators, administrators to develop new formats relative impacts on retirement savings of or their service or investment providers, or content beyond what is required in nudging participants (through electronic already have secure systems in place to printed form. Nonetheless, some plan delivery and digital engagement) versus protect covered individuals’ personal administrators may elect to develop new self-selection. To the extent that information. Such systems should formats and content for electronic electronic delivery increases retirement reduce covered individuals’ exposure to disclosures. Such formats could include savings and better prepares participants data breaches. more interactive content, with hotlinks for retirement, this rule will produce Some commenters asserted that the and multimedia presentations, which even greater benefits. Department should consider might improve the quality and Several commenters had varying participants’ preferences for paper accessibility of information. DC account opinions on how cost savings generated disclosures before finalizing the rule. information often is available by this rule would be distributed. Some According to these commenters, continuously and updated in real-time, commenters estimated that the rule investors prefer to receive disclosures which may help participants to would generate significant cost savings, effectively manage their accounts. Using by mail and comprehend paper with most going directly to participants. assistive technology, such as screen documents better than electronic Others, however, expressed skepticism. readers, electronic disclosures could be documents. Commenters with opposing Many suggested participants would made more accessible to the visually views criticized these claims and stated experience minimal benefit, particularly impaired. Online translation may help that they are based on dated studies. because the Department does not covered individuals with limited The Department reviewed several require plan administrators to pass the English skills better understand their reports concerning the issue as to cost savings onto participants. disclosures. Some plans may provide Cost savings in theory could be whether investors prefer paper mobile apps with interactive features, retained by service providers as profit, disclosures. According to a recent which will allow participants to or passed on to plan sponsors or FINRA report, investor preference was navigate the site and conduct account participants as lower fees.132 The almost evenly split between paper transactions with ease. disposition of savings is uncertain, in delivery (36 percent) and electronic Some commenters predicted that the part because in the long run the savings’ delivery (33 percent) in 2018. The share final rule might contribute to higher nominal incidence may differ from its of investors who prefer paper delivery retirement savings. According to these economic incidence. The Department has declined considerably since 2015, commenters, digitally engaged believes that a large portion of the however, while the share of investors participants or those with electronic savings will reach participants. Such who prefer electronic delivery has delivery have, on average, higher savings are additional to the benefits increased.127 (This study is based on a deferral rates and larger account participants may realize from survey of investors who hold balances than their counterparts who improvements in the quality and nonretirement accounts.) According to a are not digitally engaged or receive accessibility of disclosures. different study performed in 2019, paper disclosures. These commenters Competition among service providers almost half of 401(k) plan participants seem to attribute this higher retirement can ensure cost savings to benefit plan (49 percent) preferred reviewing 401(k) savings to electronic delivery. This sponsors and participants, in the form of account information through their interpretation, however, requires some lower fees. One commenter stated that 401(k) provider’s website, while 13 caution. Participants who are more 4,694 establishments offered third-party percent preferred a hard copy of account motivated to save are also more likely to 128 administrative services in 2016. She information. Even the eldest group actively use their plan’s website than described the market as having a high studied (70 and older) preferred a 401(k) other participants. This self-selection, volume of entry and exit, and high provider website (40 percent) to direct with the most motivated savers being concentration.133 The commenter the most digitally engaged, may explain estimated that, because of the 127 See Investors in the United States, A Report competitive environment, of the National Financial Capability Study, FINRA 129 Id. Investor Foundation, December 2019, p. 1, https:// 130 See Boosting the Effectiveness of Retirement _ 131 www.usfinancialcapability.org/downloads/NFCS Plan Communications, Empower Institute, January See Quantria Strategies, supra note 99. _ _ _ _ 132 2018 Inv Survey Full Report.pdf. (A survey of 2019, at 9, https://docs.empower-retirement.com/ Instead of lowering fees, cost savings can be 2,000 investors shows that, in 2015, 49 percent Empower/institute/Effective-Communication.pdf. passed on to plan sponsors or to participants in the preferred paper delivery, while 27 percent preferred See also What Your Employees Think About Your form of augmented services. electronic delivery). Benefits Communication, The Jellyvision Lab, 2016, 133 This commenter indicated that this estimate 128 U.S. Retirement End-Investor 2019, Driving at 12, https://www.jellyvision.com/wp-content/ was based on data from U.S. Census Bureau, County Participant Outcomes with Financial Wellness uploads/Survey-Report_What-Your-Employees- Business Patterns by Employment Size Class, 2010– Programs, Cerulli Report, 2019, at 18. Think-About-Your-Benefits-Communication.pdf. 2016.

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approximately 60 percent of cost from reductions in such fees generally up from $50 in 2017.141 Then, savings would be passed to participants will accrue to participants. eliminating recordkeeping fees would in lower fees. (Stickiness in service Other times administrative fees are save participants about 6 to 7 percent of provider relationships in some cases charged separately. The most common direct fees that they pay to may slow the flow of savings, however. fee arrangement is a direct fee paid to recordkeepers.142 Some commenters Large 401(k) plan sponsors (with $250 the recordkeeper, one survey found. A characterized this savings as minimal. million or more in assets) most majority (52 percent) of plan sponsors Others suggested the savings could be frequently identified ‘‘10 years or had this arrangement in 2019, up from considerable, especially for young and longer’’ when asked how long they had 41 percent in 2015. An additional 15 newly enrolled participants, who will been with current recordkeepers.134 percent used separate wrap fees or benefit most from the compounding Another study finds a similar pattern: a charges on investment.138 Separate fees effects. or charges generally are transparent and majority of plan sponsors reported (4) Regulatory Alternatives having been with their current therefore likely to promote competition, recordkeepers for 10 years or longer.135 ) so it is likely that savings from this rule To conform with Executive Order largely will translate into reductions in 12866, the Department considered Fees associated with disclosures such fees, benefitting plan sponsors or several regulatory approaches while sometimes are bundled into investment participants. developing this final rule. costs, such as the fees internal to mutual Separate administrative fees or funds on DC plan menus. Savings from charges often are allocated to DC (i) Covering Welfare Benefit Plan reductions in such fees generally will participants’ accounts. In 2019, 57 Disclosures accrue to participants. Other times, percent of plan sponsors reported that As discussed in section (B)(2)(ii), the disclosure and other administrative fees participants pay such fees either based Department received numerous are charged separately. These charges on their account balances (29 percent) comments about whether to expand this sometimes are allocated to DC or in equal amounts (28 percent).139 final rule to cover health and welfare participants’ accounts, again suggesting Under such arrangements, savings will plans. After careful analysis and lengthy that savings will accrue to participants. likely accrue to participants. Other deliberation, the Department decided Other times such separate charges may times such separate charges may be not to expand the rule at this time. The be allocated to plan forfeiture accounts allocated to plan forfeiture accounts (6 Department is reviewing the or paid directly by plan sponsors. In percent) or paid directly by plan information provided in response to its these cases, savings may accrue to plan sponsors (25 percent), according to the RFI, and will continue to explore this sponsors rather than directly to same survey.140 In these cases, savings option and may undertake rulemaking participants. Such savings nonetheless may accrue to plan sponsors rather than in the future. The Department has may benefit participants in the long run, directly to participants. Such savings decided to take this two-step approach for example if sponsors pass on savings nonetheless may benefit participants in so that retirement plans can accrue cost in the form of richer matching the long run, for example if sponsors savings without delay and to give the contributions or other means, in pass on savings in the form of richer Department more time to analyze response to labor market forces. Surveys matching contributions or other means, unique issues about health and welfare and comments help illustrate how in response to labor market forces. plans. Extending the scope of the final frequently common fee arrangements Commenters offered different views rule to health and welfare plans raises may result in savings to participants. on the costs of paper delivery at the unique challenges regarding the tri- In one survey, one in three DC plan participant level and the amount that agency consultation process that sponsors reported that administrative participants will save from reducing warrant careful consideration. fees are bundled into investment costs. those costs. Some commenters stated Accordingly, the Department intends to This is a smaller fraction than in 2015, the costs of paper delivery, per take more time, obtain public when one-half of plan sponsors reported participant, were minimal, suggesting comments, and develop a rule that can using this arrangement.136 Another participants would save little. Others maximize benefits to health and welfare report identifies a similar downward took the opposite view, asserting that plans and participants as part of a future trend for bundled fee arrangements.137 savings from electronic delivery would project. significantly increase participants’ Such bundled fees may be less (ii) Conforming With Electronic transparent than fees that are charged account balances. One commenter suggested that a participant in a 401(k) Delivery Approaches Adopted by Other separately, so in some cases service Agency providers may be slower to pass on plan receives, on average, 6 to 8 savings from this rule by reducing such documents per year and the average cost Executive Order 13847 directed the fees. Nonetheless, competition from to print and mail a single notice is Department to coordinate with the other service providers, including those $0.83. Assuming this is true, mailing Treasury Department to explore offering both bundled and unbundled disclosures to participants costs expanding electronic delivery. The goal fee arrangements, will put downward between $4.98 and $6.64 per year. If of expanding electronic delivery is to pressure on bundled fees, and savings after eliminating these costs, 60 percent of the cost savings flow to participants, 141 Id. at 5. But according to a different, the as one commenter suggests, participants average recordkeeping/administration costs per 134 Cerulli, supra note 128. participant was $35 in 2017 (see Stephen Miller, 135 2019 Defined Contribution Benchmarking on average would save $3 to $4 each 401(k) Sponsors Focus on Benchmarking—and Survey Report, Deloitte, 2019. year. Lowering—Fees (Feb. 22, 2018), https:// 136 2019 Defined Contribution Benchmarking A recent study estimated that the per- www.shrm.org/resourcesandtools/hr-topics/ Survey Report, Deloitte, 2019, at 20. (In 2015, 50 participant direct fee for recordkeeping benefits/pages/401k-fee-benchmarking.aspx.). percent of plan sponsors reported to have this ‘‘no services was, on average, $54 in 2019, 142 These are calculated by ($3/$54) and ($4/$54) additional fee’’ arrangement, which has declined to respectively. If the average recordkeeping/ 33 percent in 2019.) administration costs per participant were $35, as 137 U.S. Retirement Markets 2019, Looking 138 Deloitte, supra note 135, at 20. one study suggested, participants would save Toward Holistic Solutions for Participants and Plan 139 Id. approximately 9 to 11 percent of direct fees. These Sponsors, Cerulli Report, 2019, at 69. 140 Id. are calculated by ($3/$35) and ($4/$35).

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improve the effectiveness of disclosures benefit statements must be furnished on Telephone: (202) 693–8410; Fax: (202) and to reduce their associated costs and a quarterly basis for participant-directed 219–5333. These are not toll-free burdens. Following discussions with individual account plans, such as 401k numbers. ICRs submitted to OMB also Treasury Department staff, the plans. Thus, if an annual combined are available at https:// Department considered adopting an NOIA is emailed at the beginning of the www.RegInfo.gov. approach similar to that of 26 CFR year, some participants may not As discussed above, the final 1.401(a)–21, the IRS rule for electronic appreciate that subsequent quarterly regulation will create two new disclosures.143 This rule generally statements also will be made available information collections that are subject provides that a plan may use an online. Furthermore, quarterly benefit to the PRA: The annual NOIA (29 CFR electronic medium to provide statements can prompt participants to 2520.104b–31(d)(2)) and the initial applicable notices only for a participant take actions, such as checking their notification (29 CFR 2520.104b–31(g)). who affirmatively consents to receive account balances, increasing deferral The final rule will also reduce costs for the notice electronically or who has the rates, or reallocating investments. With some of the Department’s existing ‘‘effective ability to access’’ the one notice at the beginning of the year, information collections. electronically delivered notice.144 A covered individuals may less frequently The Department is unaware of any number of parties have encouraged the check their accounts and make changes data source that would directly identify Department to adopt this approach, accordingly. In the Department’s view, the number of plans that will decide to which they believed to be more flexible this may have detrimental impacts on use the final new alternative safe harbor. than the Department’s 2002 safe participants’ retirement savings, Therefore, for purposes of this analysis, harbor.145 The final rule does not adopt although it may bring administrative the Department conservatively assumes 26 CFR 1.401(a)–21(c) verbatim, but it costs down slightly. Therefore, the that all plans will use the final does, however, align with the regulation Department determined that the alternative safe harbor for at least some in large part. The Department considers approach taken in the final rule is a of their covered individuals. As this a logical outcome, because plan more balanced approach that provides discussed in the Cost Savings section administrators have to comply with sufficient protection for participants above, the Department estimates that requirements of both ERISA and the while generating substantial cost plan administrators using the final rule Code. Thus, the more coordination and savings. will incur a one-time start-up cost to alignment among potentially (5) Paperwork Reduction Act prepare and distribute the annual NOIA overlapping regulatory requirements, and the initial notification. The final the less regulatory burden overall. In accordance with the Paperwork rule’s impact on the hour and cost Reduction Act of 1995 (PRA 95) (44 burden associated with the (iii) Keeping a Quarterly Pension Benefit U.S.C. 3506(c)(2)(A)), the Department Statement in a Single Annual Combined Department’s information collections solicited comments on its new are discussed below. NOIA alternative safe harbor to use electronic Agency: Employee Benefits Security In the final rule, the Department media to satisfy the general furnishing Administration, Department of Labor. revised the group of covered documents requirement under Title 1 of ERISA. At Title: Consent to receive employee for which a single annual combined the same time, the Department also benefit plan disclosures electronically. NOIA is permitted. In contrast to the submitted an information collection Type of Review: Revision of currently proposal, under the final rule some request (ICR) to OMB, in accordance approved collection of information. covered documents, such as a quarterly with 44 U.S.C. 3507(d). The Department OMB Control Number: 1210–0121. pension benefit statement, can no longer received no comment that specifically Affected Public: Individuals or be furnished with a single annual addressed the paperwork burden households; Business or other for-profit; combined NOIA.146 The Department analysis of the information collections. Not-for-profit institutions. considered keeping the quarterly The Department did, however, receive Respondents: 710,000. pension benefit statement as one of the comments on costs and administrative Responses: 109,440,000. disclosures that can be included in a burdens related to the proposal. The Estimated Total Burden Hours: single annual combined NOIA. Pension Department reviewed the comments and 2,388,000. took them into account when making Estimated Total Costs: $44,737,000. 143 The Treasury Department and the IRS have changes to the final rule, analyzing the On April 9, 2002, the Department issued a series of guidance on electronic economic impact of the proposal, and disclosures, beginning with IRS Notice 99–1, and published a notice of final rulemaking more recently in 26 CFR 1.401(a)–21(c) (2006), on developing the revised paperwork on electronic communication and the ‘‘Use of Electronic Media for Providing burden analysis summarized below. recordkeeping technologies to establish Employee Benefit Notices and Making Employee In connection with the new rule, the a safe harbor for electronic Benefit Elections and Consents.’’ See e.g., Notice Department is submitting an ICR to 147 99–1 (1999–2 I.R.B. 8); Announcement 99–6 (1999– disclosures. The 2002 safe harbor 4 I.R.B. 24); T.D. 8873, 65 FR 6001 (Feb. 8, 2000); OMB requesting approval of a revised generally covers disclosures under Title and T.D. 9294, 71 FR 61877 (Oct. 20, 2006). collection of information under OMB I. The final regulation also covered the 144 See 26 CFR 1.401(a)–21(b) and (c) (2006). Control Number 1210–0121. The receipt of required disclosures at 145 See Written Statement of Michael Hadley, Department will notify the public when Partner, Davis & Harman LLP, to the ERISA locations other than the workplace. The Advisory Council (June 7, 2017), at 8, https:// OMB approves the ICR. 2002 safe harbor requires that plan www.dol.gov/sites/dolgov/files/EBSA/about-ebsa/ A copy of the ICR may be obtained by administrators to obtain affirmative about-us/erisa-advisory-council/2017-mandated- contacting the PRA addressee shown consent, in advance, before distributing disclosure-for-retirement-plans-hadley-written- below or at https://www.RegInfo.gov. statement-06-07.pdf; see also Written Statement of electronic disclosures to participants David N. Levine and Brigen L. Winters, Principals, PRA Addressee: Address requests for and beneficiaries outside the Groom Law Group (June 7, 2017), at 4, https:// copies of the ICR to James Butikofer, workplace.148 In order to gain consent, www.dol.gov/sites/dolgov/files/EBSA/about-ebsa/ Office of Policy and Research, U.S. the plan administrator must provide a about-us/erisa-advisory-council/2017-mandated- Department of Labor, Employee Benefits disclosure-for-retirement-plans-levine-and-winters- written-statement-06-07.pdf. Security Administration, 200 147 67 FR 17263 (April 9, 2002). 146 An SMM is another document excluded from Constitution Avenue NW, Room N– 148 This requirement is incorporated at 29 CFR a single annual combined NOIA. 5718, Washington, DC 20210. 2520.104b–1(c)(2)(ii)(A), (B), and (C).

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clear and conspicuous statement that the plan or a change in the required Respondents: 32,000. includes the following: The types of content of the SPD, section 104(b)(1) of Responses: 65,527,000. documents to which the consent would ERISA requires plan administrators to Estimated Total Burden Hours: apply; that consent may be withdrawn furnish participants and certain 197,000. at any time; the procedures for beneficiaries with an SMM or summary Estimated Total Costs: $7,080,000. withdrawing consent and updating of material reductions (SMR).149 The Description: Section 101(f) of the necessary information; the right to Department has issued regulations ERISA sets forth annual funding notice obtain a paper copy, free of charge; and providing guidance on compliance with requirements. Before 2006, the year the any hardware and software the requirements to furnish SPDs, Pension Protection Act (PPA) was requirements. SMMs, and SMRs. These regulations, enacted, section 101(f) applied only to The Department revises this codified at 29 CFR 2520.102–2, multiemployer defined benefit plans. information collection by adding the 2520.102–3, 29 CFR 2520.104b–2, and The Department has issued multiple information collections required under 29 CFR 2520.104b–3, contain final regulations with regard to this the final rule to the 2002 safe harbor. information collections for which the provision, most recently on February 2, This will increase the number of Department has obtained OMB approval 2015 (80 FR 5625). Section 501(a) of the respondents by 710,000, the responses under OMB Control No. 1210–0039. PPA amended section 101(f) of ERISA to by 109,440,000, the hour burden by The Department estimates that the change to the annual funding notice 2,388,000, and the cost burden by final alternative safe harbor will reduce requirements. These amendments $44,737,000. the hour burden by 126,000 and the cost require plan administrators of all The final rule will affect the burden by $88,464,000. defined benefit plans subject to Title IV Department’s burden estimates for Agency: Employee Benefits Security of ERISA to provide an annual funding several existing information collections Administration, Department of Labor. notice to the Pension Benefit Guaranty of covered disclosures. Specifically, the Title: ERISA Summary Annual Report Corporation (PBGC); plan participants rule will reduce the burden associated Requirement. and beneficiaries; labor organizations Type of Review: Revised Collection. representing participants or with the following covered disclosures OMB Number: 1210–0040. with information collections covered by Affected Public: Not-for-profit beneficiaries; and, in the case of a the PRA: The SPD, the SMM, the SAR, institutions, Businesses or other for- multiemployer plan, all plan employers. the annual funding notice, disclosures profits. The annual funding notice must for participant-directed individual Respondents: 750,000. include, among other things, the plan’s account plans under ERISA section Responses: 166,350,000. funding percentage, assets and 404(a)(5), and the QDIA notice. The Estimated Total Burden Hours: liabilities, asset allocation, and a burden reduction estimates are based on 1,185,000. description of the benefits under the the current cost and hour burdens for Estimated Total Costs: $24,358,000. plan that are eligible to be guaranteed by the Department’s existing ICRs for the Description: ERISA Section 104(b)(3) the PBGC. The ICR was approved by covered disclosures, adjusted for the and the regulation published at 29 CFR OMB under OMB Control Number number of plans and participants the 2520.104b–10 require, with certain 1210–0126. Department assumes will use electronic exceptions, that plan administrators The Department estimates that the disclosures. The Department discusses furnish participants and certain final alternative safe harbor will reduce these ICRs and its revised estimates beneficiaries with a SAR. The regulation the hour burden by 454,000 and the cost below. The Department has submitted prescribes the content and format of the burden by $12,560,000. the revised information collections for SAR and the timing of its delivery. The Agency: Employee Benefits Security these covered disclosures to OMB for SAR provides information about the Administration, Department of Labor. review, in accordance with 44 U.S.C. plan’s current financial operation and Title: Disclosures for Participant 3507(d). condition. It also explains participants’ Directed Individual Account Plans. and beneficiaries’ rights to receive Type of Review: Revised Collection. Agency: Employee Benefits Security further information on these issues. Administration, Department of Labor. OMB Control Number: 1210–0090. EBSA previously submitted the ICR Affected Public: Businesses or other Title: Summary Plan Description provisions in the regulation at 29 CFR Requirements under the ERISA. for-profits, Not-for-profit institutions. 2520.104b–10 to OMB, and OMB Respondents: 566,000. Type of Review: Revised Collection. approved the ICR under OMB Control OMB Control Number: 1210–0039. Responses: 769,693,000. No. 1210–0040. Affected Public: Businesses or other Estimated Total Burden Hours: for-profits, Not-for-profit institutions. The Department estimates that the 5,914,000. Respondents: 3,033,000. final alternative safe harbor will reduce Estimated Total Costs: $223,980,000. Responses: 112,733,000. the hour burden by 607,000 and the cost Description: Plan administrators must Estimated Total Burden Hours: burden by $23,661,000. provide plan- and investment-related 163,000. Agency: Employee Benefits Security fee and expense information to Estimated Total Costs: $235,556,000. Administration, Department of Labor. participants and beneficiaries in all Description: Section 104(b) of ERISA Title: Annual Funding Notice for participant-directed individual account requires the employee benefit plan Defined Benefit Pension Plans. plans (e.g., 401(k) plans) for plan years administrators furnish participants and Type of Review: Amendment of a beginning on or after January 1, 2011. certain beneficiaries with an SPD that currently approved collection of The Department previously requested describes, in language understandable to information. review of this information collection OMB Control Number: 1210–0126. an average plan participant, the benefits, and obtained approval from OMB under Affected Public: Businesses or other rights, and obligations of participants in OMB control number 1210–0090. for-profits, Not-for-profit institutions. the plan. The SPD information The Department estimates that the requirements are set forth in section 149 Because SMRs apply only to health plans, not final alternative safe harbor will reduce 102(b) of ERISA. To the extent there is retirement plans, they will not be affected by this the hour burden by 979,000 and the cost a material modification in the terms of new safe harbor. burden by $46,360,000.

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Agency: Employee Benefits Security (6) Regulatory Flexibility Act standards different from those Administration, Department of Labor. The Regulatory Flexibility Act promulgated by the SBA. Title: Default Investment Alternatives (RFA) 150 imposes certain requirements The Department has determined that under Participant Directed Individual on rules subject to the notice and this final rule will significantly impact Account Plans. comment requirements of section 553(b) a substantial number of small entities: 151 Employee benefit plans with fewer than Type of Review: Revised collection. of the Administrative Procedure Act. Under section 604 of the RFA, agencies 100 participants. The Department’s OMB Control Number: 1210–0132. must submit a final regulatory flexibility FRFA follows. Affected Public: Not-for-profit analysis (FRFA) for proposals that are (i) Need for and Objectives of the Rule institutions, Businesses or other for- likely to have a significant economic profits. impact on a substantial number of small Pursuant to section 505 of ERISA, the Respondents: 297,000. entities. Small entities include small Secretary of Labor has broad authority ‘‘to prescribe such regulations as he Responses: 39,549,000. businesses, organizations, and governmental jurisdictions. finds necessary or appropriate to carry Estimated Total Burden Hours: For purposes of analysis under the out the provisions of [Title I] of ERISA.’’ 76,000. RFA, the Employee Benefits Security The final rule offers a voluntary, Estimated Total Burden Costs: Administration (EBSA) considers an alternative method for electronic $2,074,000. employee benefit plan with fewer than disclosures and, thus, reduces the costs Description: Section 404(c) of ERISA 100 participants a small entity.152 This and burdens of related to required states that participants or beneficiaries definition is based on section 104(a)(2) disclosures. The final rule will reduce who can hold individual accounts of ERISA, which permits the Secretary the cost of printing and mailing covered under their pension plans and exercise of Labor to prescribe simplified annual disclosures, benefitting plans regardless control over the assets ‘‘as determined reports for pension plans that cover of the size. Therefore, the Department in regulations of the Secretary [of fewer than 100 participants. Under expects the final rule to deliver benefits Labor]’’ will not be treated as fiduciaries section 104(a)(3), the Secretary may also to the participants of many small plans of the plan. Moreover, plan fiduciaries provide for exemptions or simplified and their families, as well as the plans are not liable for any loss resulting from annual reporting and disclosure for themselves. the participants’ or beneficiary’s welfare benefit plans. Pursuant to (ii) Affected Small Entities exercise of control over their individual section 104(a)(3), the Department has The majority of private retirement account assets. previously issued simplified reporting provisions and limited exemptions from plans are small plans with fewer than The PPA amended ERISA section reporting/disclosure requirements for 100 participants. The 2017 Form 5500 404(c) by adding paragraph (c)(5)(A). small plans, including unfunded or filings show that out of total 710,000 The new paragraph requires that insured welfare plans covering fewer private retirement plans, approximately participants who fail to make than 100 participants and satisfying 87 percent, or 619,000, of ERISA- investment elections be treated as certain other requirements.153 covered retirement plans were small having exercised control over their Further, while some large employers plans with fewer than 100 account assets, so long as the plan may have small plans, small employers participants.156 However, small plans provides appropriate notice and invests generally maintain small plans. Thus, cover only a fraction of total the assets ‘‘in accordance with EBSA believes that assessing the impact participants. In 2017, over 137 million regulations prescribed by the Secretary of this final rule on small plans is an individuals participated in private [of Labor].’’ As required under ERISA appropriate substitute for evaluating the retirement plans. Out of these 137 section 404(c)(5)(A), the Department effect on small entities. The definition million participants, over 12 million issued a final regulation on the types of of small entity considered appropriate participants, less than 10 percent, were investment vehicles that plan for this purpose differs, however, from in small plans. The Department fiduciaries may choose as a QDIA. The a definition of small business that is estimates that slightly more than half regulation also outlines two information based on size standards promulgated by already receive disclosures collection requirements. First, it the Small Business Administration electronically. The remaining half will implements the statutory requirement (SBA) 154 pursuant to the Small likely receive electronic disclosures that a fiduciary must provide annual Business Act.155 EBSA requested under this final rule. notices to participants and beneficiaries comments on the appropriateness of the whose account assets could be invested (iii) Projected Reporting, Recordkeeping, size standard used to evaluate the and Other Compliance Requirements in a QDIA. Second, the regulation impact of the proposed rule on small requires fiduciaries to pass certain entities and received no comment on As discussed above, by allowing more pertinent materials they receive relating this issue. In particular, the Department participants who access disclosures to a QDIA to those participants and did not receive any comment stating online, the final rule will save beneficiaries with assets invested in the that it is inappropriate to use size retirement plans, including small plans, QDIA as well to provide certain money. These cost savings can in turn information on request. The ICRs are 150 5 U.S.C. 601 (2012). be used to defray other plan-related approved under OMB Control Number 151 5 U.S.C. 551 (2012). expenses, and thus lower the overall 1210–0132. 152 The Department consulted with the Small fees charged to participants. In addition, Business Administration Office of Advocacy in modern technology features may help The Department estimates that due to making this determination as required by 5 U.S.C. fiduciaries’ use of the final alternative 603(c) and 13 CFR 121.903(c). participants with disabilities or limited safe harbor to provide disclosures to 153 See 29 CFR 2520.104–20 (2012), 29 CFR English skills better understand the participants who currently are receiving 2520.104–21 (2012), 29 CFR 2520.104–41 (2012), 29 content of disclosures, which will allow them by mail, the hour burden will be CFR 2520.104–46 (2012), and 29 CFR 2520.104b–10 (2012). 156 Private Pension Plan Bulletin 2016, Employee reduced by 117,000 and the cost burden 154 13 CFR 121.201 (2011). Benefits Security Administration, Department of will be reduced by $9,135,000. 155 15 U.S.C. 631 (2013). Labor.

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them to better manage their plan benefit statements can prompt paragraph (k), in the final rule and accounts. Both large and small plans participants to take actions such as allows plan administrators to furnish will benefit from the cost savings and checking their account balances, covered documents directly by email as other benefits that result from wider use increasing deferral rates, or reallocating an alternative to the notice and access of electronic disclosure. investments. With one single notice at approach. Therefore, a plan This final rule is a voluntary safe the beginning of the year, participants administrator that does not have a harbor. Therefore, plan administrators may less frequently check their accounts website can rely on this new safe harbor will not be required to make any and make changes accordingly. In the to provide electronic disclosure without specific disclosures available on a Department’s view, this may have developing a website. The Department website. This final rule simply provides detrimental impacts on participants’ believes this change in the final rule an additional, optional method for plan retirement savings, although it may will help more small plan administrators to deliver covered bring costs down. Therefore, the administrators electronically deliver disclosures to participants and Department determines that the plan-related documents, reducing the beneficiaries electronically and does not approach taken in the final rule is more administrative burden on small plans. change any underlying reporting, balanced, protecting participants while disclosure, and recordkeeping saving money. (7) Unfunded Mandates Reform Act requirements. Therefore, the Small plans, like large plans, will Title II of the Unfunded Mandates Department does not believe this final incur costs associated with emailing Reform Act of 1995 158 requires each rule will impose any additional NOIAs and addressing invalid or federal agency to prepare a written compliance requirements on small inoperable electronic addresses statement assessing the effects of any entities. quarterly, rather than annually. The federal mandate in a final rule that may Department, however, does not believe (iv) Duplicate, Overlapping, or Relevant result in an expenditure of $100 million this burden will be disproportionally Federal Rules or more (adjusted annually for inflation borne by small plans because small with the base year 1995) in any one year The final rule will provide retirement plans, having fewer participants, will by state, local, and tribal governments, plan administrators with an alternative have fewer electronic addresses to in the aggregate, or by the private sector. method to furnish covered disclosures manage and an easier time updating For purposes of the Unfunded Mandates electronically. In developing this electronic addresses due to the Reform Act, as well as Executive Order alternative, the Department consulted proximity between administrators and 12875, this final rule does not include with other relevant regulators, including participants. The Department, thus, any federal mandate that will result in the Treasury Department and the SEC. determines that this approach does not such expenditures. This is because the The Treasury Department has disadvantage nor unduly burden small final rule merely provides an interpretive jurisdiction over certain plans. alternative, optional safe harbor for notices relating to pension plans Paragraph (e) of the final rule requires pension benefit plans subject to ERISA covered by Title 1 of ERISA, but the plan administrators to ensure the to use electronic media to furnish covered disclosures under the final rule existence of a website at which covered required disclosures to participants and are exclusively in the jurisdiction of the individuals can access covered beneficiaries. Labor Department. The SEC has documents. In the proposed rule, the jurisdiction over issuers of investment Department solicited comments (8) Federalism Statement products that often are used as ERISA regarding the fraction of plans, Executive Order 13132 outlines employee retirement plan investments particularly small plans, that would fundamental principles of federalism. as well as some service providers to need to develop or modify a website in E.O. 13132 requires federal agencies to ERISA-covered plans, but it has no order to rely on this new safe harbor. follow specific criteria in forming and jurisdiction over ERISA-covered The Department was particularly implementing policies that have pension plans. concerned about any potential disproportionate burden on small plans ‘‘substantial direct effects’’ on the states, (v) Significant Alternatives Considered that this condition may inadvertently the relationship between the national The RFA directs the Department to impose. One commenter suggested that government and states, or on the consider significant alternatives that small plans are less likely to have their distribution of power and would accomplish the stated objective, own websites. In addition, one study responsibilities among the various while minimizing any significant suggests that slightly more than a levels of government. Federal agencies adverse impact on small entities. As quarter (27 percent) of small profit promulgating regulations that have discussed above, the Department sharing and 401(k) plans (plans with federalism implications must consult expects this final rule to save money for fewer than 50 participants) did not with state and local officials and small and large plans by eliminating provide any services via internet, describe the extent of their consultation materials, printing, and mailing costs. whereas only 10 percent of large profit and the nature of the concerns of state The Department considered keeping sharing and 401(k) plans (plans with and local officials in the preamble to the the quarterly pension benefit statement 5,000 participants or more) did not final rule. as one of the disclosures that can be provide any services via internet in In the Department’s view, this final included in a single annual combined 2017.157 In part to mitigate any potential regulation does not have federalism NOIA. Pension benefit statements must negative impact on small plans, the implications because it does not have a be furnished quarterly for participant- Department added a new paragraph, direct effect on the states, the directed individual account plans, such relationship between the national as 401k plans. Thus, if a single annual 157 See Plan Sponsors Council of America, supra government and the states, or on the combined NOIA is emailed at the note 109. (Because the Department expects most distribution of power and beginning of the year, some participants 401(k) plans to have their own websites, the responsibilities among various levels of fraction of small defined benefit plans and non- government. may not appreciate that subsequent participant-directed defined contribution plans that quarterly statements will also be made lack websites will likely be higher than that of small available online. Furthermore, quarterly 401(k) plans.) 158 Public Law 104–4, 109 Stat. 48 (1995).

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List of Subjects in 29 CFR Parts 2520 electronic media disclosure obligations to each covered individual a notice of and 2560 in paragraph (c) of this section, the internet availability for each covered Employee benefit plans, Pensions. administrator of an employee benefit document in accordance with the plan is deemed to satisfy the requirements of this section. For the reasons stated in the requirements of paragraph (b)(1) of this (2) Timing of notice of internet preamble, the Department of Labor section, provided that the administrator availability. A notice of internet amends 29 CFR parts 2520 and 2560 as complies with the obligations in 29 CFR availability must be furnished at the follows: 2520.104b–31. time the covered document is made PART 2520—RULES AND ■ 4. Add § 2520.104b–31 to subpart F to available on the website described in REGULATIONS FOR REPORTING AND read as follows: paragraph (e) of this section. However, DISCLOSURE if an administrator furnishes a § 2520.104b–31 Alternative method for combined notice of internet availability ■ disclosure through electronic media— 1. The authority citation for part 2520 Notice-and-access. for more than one covered document, as continues to read as follows: permitted under paragraph (i) of this (a) Alternative method for disclosure section, the requirements of this Authority: 29 U.S.C. 1021–1025, 1027, through electronic media—Notice-and- 1029–1031, 1059, 1134 and 1135; and paragraph (d)(2) are treated as satisfied access. As an alternative to if the combined notice of internet Secretary of Labor’s Order 1–2011 77 FR § 2520.104b–1(c), the administrator of 1088 (Jan. 9, 2012). Sec. 2520.101–2 also availability is furnished each plan year, issued under 29 U.S.C. 1132, 1181–1183, an employee benefit plan satisfies the and, if the combined notice of internet 1181 note, 1185, 1185a–b, 1191, and 1191a– general furnishing obligation in availability was furnished in the prior c. Secs. 2520.102–3, 2520.104b–1 and § 2520.104b–1(b)(1) with respect to plan year, no more than 14 months 2520.104b–3 also issued under 29 U.S.C. covered individuals and covered following the date the prior plan year’s 1003, 1181–1183, 1181 note, 1185, 1185a–b, documents, provided that the notice was furnished. 1191, and 1191a–c. Secs. 2520.104b–1 and administrator complies with the notice, (3) Content of notice of internet 2520.107 also issued under 26 U.S.C. 401 access, and other requirements of availability. (i) A notice of internet note, 111 Stat. 788. Sec. 2520.101–5 also paragraphs (b) through (k) of this availability furnished pursuant to this issued under sec. 501 of Pub. L. 109–280, 120 section, as applicable. section must contain the information set Stat. 780, and sec. 105(a), Pub. L. 110–458, (b) Covered individual. For purposes 122 Stat. 5092. forth in paragraphs (d)(3)(i)(A) through of this section, a ‘‘covered individual’’ (H) of this section: ■ 2. Amend § 2520.101–3 by revising is a participant, beneficiary, or other paragraph (b)(3) to read as follows: individual entitled to covered (A) A prominent statement—for documents and who—when he or she example as a title, legend, or subject § 2520.101–3 Notice of blackout periods line—that reads: ‘‘Disclosure About under individual account plans. begins participating in the plan, as a condition of employment, or Your Retirement Plan.’’ * * * * * otherwise—provides the employer, plan (B) A statement that reads: ‘‘Important (b) * * * sponsor, or administrator (or an information about your retirement plan (3) Form and manner of furnishing is now available. Please review this notice. The notice required by appropriate designee of any of the foregoing) with an electronic address, information.’’ paragraph (a) of this section shall be in (C) An identification of the covered writing and furnished to affected such as an electronic mail (‘‘email’’) address or internet-connected mobile- document by name (for example, a participants and beneficiaries in any statement that reads: ‘‘your Quarterly manner consistent with the computing-device (e.g., ‘‘smartphone’’) number, at which the covered Benefit Statement is now available’’) requirements of § 2520.104b–1 of this and a brief description of the covered chapter, including § 2520.104b–1(c) or individual may receive a written notice of internet availability, described in document if identification only by name § 2520.104b–31 of this chapter relating would not reasonably convey the nature to the use of electronic media. paragraph (d) of this section, or an email described in paragraph (k) of this of the covered document. * * * * * section. Alternatively, if an electronic (D) The internet website address, or a ■ 3. Amend § 2520.104b–1 by revising address is assigned by an employer to hyperlink to such address, where the paragraph (c)(1) introductory text and an employee for employment-related covered document is available. The adding paragraph (f) to read as follows: purposes that include but are not website address or hyperlink must be sufficiently specific to provide ready § 2520.104b–1 Disclosure. limited to the delivery of covered documents, the employee is treated as if access to the covered document and will * * * * * he or she provided the electronic satisfy this standard if it leads the (c) * * * address. covered individual either directly to the (1) Except as otherwise provided by (c) Covered documents. For purposes covered document or to a login page applicable law, rule or regulation, of this section, a ‘‘covered document’’ that provides, or immediately after a including the alternative methods for is: covered individual logs on provides, a disclosure through electronic media in (1) Pension benefit plans. In the case prominent link to the covered paragraph (f) of this section, the of an employee pension benefit plan, as document. administrator of an employee benefit defined in section 3(2) of the Act, any (E) A statement of the right to request plan furnishing documents through document or information that the and obtain a paper version of the electronic media is deemed to satisfy administrator is required to furnish to covered document, free of charge, and the requirements of paragraph (b)(1) of participants and beneficiaries pursuant an explanation of how to exercise this this section with respect to an to Title I of the Act, except for any right. individual described in paragraph (c)(2) document or information that must be (F) A statement of the right, free of of this section if: furnished only upon request. charge, to opt out of electronic delivery * * * * * (2) [Reserved] and receive only paper versions of (f) Alternative disclosure through (d) Notice of internet availability—(1) covered documents, and an explanation electronic media. As an alternative to General. The administrator must furnish of how to exercise this right.

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(G) A cautionary statement that the (v) The covered document can be individual is treated as if he or she covered document is not required to be searched electronically by numbers, made an election under paragraph (f)(2) available on the website for more than letters, or words; and of this section, the administrator must one year or, if later, after it is (vi) The covered document is furnish to the covered individual, as superseded by a subsequent version of presented on the website in a widely- soon as is reasonably practicable, a the covered document. available format or formats that allow paper version of the covered document (H) A telephone number to contact the the covered document to be identified in the undelivered notice of administrator or other designated permanently retained in an electronic internet availability. representative of the plan. format that satisfies the requirements of (g) Initial notification of default (ii) A notice of internet availability paragraph (e)(2)(iv) of this section. electronic delivery and right to opt out. furnished pursuant to this section may (3) The administrator must take The administrator must furnish to each contain a statement as to whether action measures reasonably calculated to individual, prior to the administrator’s by the covered individual is invited or ensure that the website protects the reliance on this section with respect to required in response to the covered confidentiality of personal information such individual, a notification on paper document and how to take such action, relating to any covered individual. that covered documents will be or that no action is required, provided (4) For purposes of this section, the furnished electronically to an electronic that such statement is not inaccurate or term website means an internet website, address; identification of the electronic misleading. or other internet or electronic-based address that will be used for the information repository, such as a mobile (4) Form and manner of furnishing individual; any instructions necessary application, to which covered notice of internet availability. A notice to access the covered documents; a individuals have been provided of internet availability must: cautionary statement that the covered reasonable access. document is not required to be available (i) Be furnished electronically to the (f) Right to copies of paper documents address referred to in paragraph (b) of on the website for more than one year or to opt out of electronic delivery. (1) or, if later, after it is superseded by a this section; Upon request from a covered individual, (ii) Contain only the content specified subsequent version of the covered the administrator must promptly furnish document; a statement of the right to in paragraph (d)(3) of this section, to such individual, free of charge, a except that the administrator may request and obtain a paper version of a paper copy of a covered document. Only covered document, free of charge, and include pictures, logos, or similar one paper copy of any covered an explanation of how to exercise this design elements, so long as the design document must be provided free of right; and a statement of the right, free is not inaccurate or misleading and the charge under this section. of charge, to opt out of electronic required content is clear; (2) Covered individuals must have the delivery and receive only paper versions (iii) Be furnished separately from any right, free of charge, to globally opt out of covered documents, and an other documents or disclosures of electronic delivery and receive only explanation of how to exercise this furnished to covered individuals, except paper versions of covered documents. right. A notification furnished pursuant as permitted under paragraph (i) of this Upon request from a covered individual, to this paragraph (g) must be written in section; and the administrator must promptly a manner calculated to be understood by (iv) Be written in a manner calculated comply with such an election. the average plan participant. to be understood by the average plan (3) The administrator must establish (h) Special rule for severance from participant. and maintain reasonable procedures employment. At the time a covered (e) Standards for internet website. (1) governing requests or elections under individual who is an employee, and for The administrator must ensure the paragraphs (f)(1) and (2) of this section. whom an electronic address assigned by existence of an internet website at The procedures are not reasonable if an employer pursuant to paragraph (b) which a covered individual is able to they contain any provision, or are of this section is used to furnish covered access covered documents. administered in a way, that unduly documents, severs from employment (2) The administrator must take inhibits or hampers the initiation or with the employer, the administrator measures reasonably calculated to processing of a request or election. must take measures reasonably ensure that: (4) The system for furnishing a notice calculated to ensure the continued (i) The covered document is available of internet availability must be designed accuracy and availability of such on the website no later than the date on to alert the administrator of a covered electronic address or to obtain a new which the covered document must be individual’s invalid or inoperable electronic address that enables receipt furnished under the Act; electronic address. If the administrator of covered documents following the (ii) The covered document remains is alerted that a covered individual’s individual’s severance from available on the website at least until electronic address has become invalid employment. the date that is one year after the date or inoperable, such as if a notice of (i) Special rule for annual combined the covered document is made available internet availability sent to that address notices of internet availability. on the website pursuant to paragraph is returned as undeliverable, the Notwithstanding the requirements in (e)(2)(i) of this section or, if later, the administrator must promptly take paragraphs (d)(4)(ii) and (iii) of this date it is superseded by a subsequent reasonable steps to cure the problem (for section, an administrator may furnish version of the covered document; example, by furnishing a notice of one notice of internet availability that (iii) The covered document is internet availability to a valid and incorporates or combines the content presented on the website in a manner operable secondary electronic address required by paragraph (d)(3) of this calculated to be understood by the that had been provided by the covered section with respect to one or more of average plan participant; individual, if available, or obtaining a the following: (iv) The covered document is new valid and operable electronic (1) A summary plan description, as presented on the website in a widely- address for the covered individual) or required pursuant to section 104(a) of available format or formats that are treat the covered individual as if he or the Act; suitable to be both read online and she made an election under paragraph (2) Any covered document or printed clearly on paper; (f)(2) of this section. If the covered information that must be furnished

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annually, rather than upon the (i) Includes the covered document in shall be one of invalidity or occurrence of a particular event, and the body of the email or as an unenforceability, in which event the does not require action by a covered attachment; provision shall be severable from this individual by a particular deadline; (ii) Includes a subject line that reads: section and shall not affect the (3) Any other covered document if ‘‘Disclosure About Your Retirement remainder thereof. authorized in writing by the Secretary of Plan’’; Labor, by regulation or otherwise, in (iii) Includes the information PART 2560—RULES AND compliance with section 110 of the Act; described in paragraph (d)(3)(i)(C) of REGULATIONS FOR ADMINISTRATION and this section if the covered document is AND ENFORCEMENT (4) Any applicable notice required by an attachment (identification or brief the Internal Revenue Code if authorized description of the covered document), ■ 5. The authority citation for part 2560 in writing by the Secretary of the paragraphs (d)(3)(i)(E) (statement of continues to read as follows: Treasury. right to paper copy of covered Authority: 29 U.S.C. 1132, 1135, and (j) Reasonable procedures for document), (d)(3)(i)(F) (statement of Secretary of Labor’s Order 1–2011, 77 FR compliance. The conditions of this right to opt out of electronic delivery), 1088 (Jan. 9, 2012). Section 2560.503–1 also section are satisfied, notwithstanding and (d)(3)(i)(H) (a telephone number) of issued under 29 U.S.C. 1133. Section the fact that the covered documents this section; and 2560.502c–7 also issued under 29 U.S.C. described in paragraph (b) of this (iv) Complies with paragraph 1132(c)(7). Section 2560.502c–4 also issued section are temporarily unavailable for a (d)(4)(iv) of this section (relating to under 29 U.S.C. 1132(c)(4). Section reasonable period of time in the manner 2560.502c–8 also issued under 29 U.S.C. readability). 1132(c)(8). required by this section due to technical (3) The covered document is: maintenance or unforeseeable events or (i) Written in a manner reasonably ■ circumstances beyond the control of the 6. Amend § 2560.503–1 by revising calculated to be understood by the the second sentence of paragraph (g)(1) administrator, provided that: average plan participant; (1) The administrator has reasonable introductory text and the second (ii) Presented in a widely-available procedures in place to ensure that the sentence of paragraph (j)(1) to read as format or formats that are suitable to be covered documents are available in the follows: read online, printed clearly on paper, manner required by this section; and § 2560.503–1 Claims procedure. (2) The administrator takes prompt and permanently retained in an action to ensure that the covered electronic format that satisfies the * * * * * documents become available in the preceding requirements in this sentence; (g) * * * and manner required by this section as soon (1) * * * Any electronic notification as practicable following the earlier of (iii) Searchable electronically by numbers, letters, or words. shall comply with the standards the time at which the administrator imposed by 29 CFR 2520.104b– knows or reasonably should know that (4) The administrator: (i) Takes measures reasonably 1(c)(1)(i), (iii), and (iv), or with the the covered documents are temporarily standards imposed by 29 CFR unavailable in the manner required by calculated to protect the confidentiality of personal information relating to the 2520.104b–31 (for pension benefit this section. plans). * * * (k) Alternative method for disclosure covered individual; and through email systems. Notwithstanding (ii) Complies with paragraphs (f) * * * * * any other provision of this section, an (relating to copies of paper documents (j) * * * administrator satisfies the general or the right to opt out); (g) (relating to (1) * * * Any electronic notification furnishing obligation in § 2520.104b– the initial notification of default shall comply with the standards 1(b)(1) by using an email address to electronic delivery), except for the imposed by 29 CFR 2520.104b– furnish a covered document to a cautionary statement; and (h) (relating 1(c)(1)(i), (iii), and (iv), or with the covered individual, provided that: to severance from employment) of this standards imposed by 29 CFR (1) The covered document is sent to section. 2520.104b–31 (for pension benefit a covered individual’s email address, (l) Dates; severability. (1) This section plans). * * * is applicable July 27, 2020. referred to in paragraph (b) of this * * * * * section, no later than the date on which (2) If any provision of this section is the covered document must be held to be invalid or unenforceable by Signed at Washington, DC, May 15, 2020. furnished under the Act. its terms, or as applied to any person or Eugene Rutledge, (2) In lieu of furnishing a notice of circumstance, or stayed pending further Assistant Secretary, Employee Benefits internet availability pursuant to agency action, the provision shall be Security Administration, Department of paragraph (d) of this section, the construed so as to continue to give the Labor. administrator sends an email pursuant maximum effect to the provision [FR Doc. 2020–10951 Filed 5–21–20; 8:45 am] to this paragraph (k) that: permitted by law, unless such holding BILLING CODE 4510–29–P

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Part IV

The President

Proclamation 10038—National Maritime Day, 2020 Proclamation 10039—Honoring the Victims of the Novel Coronavirus Pandemic Proclamation 10040—Prayer for Peace, Memorial Day, 2020

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Federal Register Presidential Documents Vol. 85, No. 102

Wednesday, May 27, 2020

Title 3— Proclamation 10038 of May 21, 2020

The President National Maritime Day, 2020

By the President of the United States of America

A Proclamation Since the founding of our great Nation, we have relied on merchant mariners to deliver goods to market and strengthen our national security. On National Maritime Day, we recognize the United States Merchant Marine for all it does to facilitate our commerce and protect our interests at sea. Our Nation’s merchant mariners enable peaceful trade with countries around the world and provide vital sealift support to our Armed Forces. Whether on the ocean or our inland waterways, merchant mariners support our economy by transporting billions of dollars of imported and exported goods. These men and women also sail bravely into combat zones to deliver supplies and weapons to our military men and women, playing a critical role in the success of their mission. This year, as we celebrate the 75th anniversary of the end of World War II, we pay tribute to the United States merchant mariners who served as the ‘‘Fourth Arm of Defense’’ for our Nation during the war. Earlier this year, I was proud to sign into law long-overdue legislation to award the Congressional Gold Medal to the valiant civilian merchant mariners who maintained critical supply lines to our overseas troops and allies during the Second World War. Many of these mariners endured brutal attacks from German U–boats, and more than 6,000 of them perished at sea or were held as prisoners of war. This number includes 142 students of the United States Merchant Marine Academy—distinguishing it as the only one of the five service academies authorized to carry a battle standard. As we remember the tremendous sacrifices of the World War II merchant mariners, we also continue to honor the present-day citizen mariners who make up our Nation’s world-class Merchant Marine. Today, we pay tribute to their expertise, patriotism, and dedication to serving our country and ensuring our national security. The Congress, by a joint resolution approved May 20, 1933, has designated May 22 of each year as ‘‘National Maritime Day’’ to commemorate the first transoceanic voyage by a steamship in 1819 by the S.S. Savannah. By this resolution, the Congress has authorized and requested the President to issue annually a proclamation calling for its appropriate observance. NOW, THEREFORE, I, DONALD J. TRUMP, President of the United States of America, do hereby proclaim May 22, 2020, as National Maritime Day. I call upon the people of the United States to mark this observance and to display the flag of the United States at their homes and in their commu- nities. I also request that all ships sailing under the American flag dress ship on that day.

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IN WITNESS WHEREOF, I have hereunto set my hand this twenty-first day of May, in the year of our Lord two thousand twenty, and of the Independence of the United States of America the two hundred and forty- fourth.

[FR Doc. 2020–11538 Filed 5–26–20; 11:15 am] Billing code 3295–F0–P

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Proclamation 10039 of May 21, 2020

Honoring the Victims of the Novel Coronavirus Pandemic

By the President of the United States of America

A Proclamation Our Nation mourns for every life lost to the coronavirus pandemic, and we share in the suffering of all those who endured pain and illness from the outbreak. Through our grief, America stands steadfast and united against the invisible enemy. May God be with the victims of this pandemic and bring aid and comfort to their families and friends. As a mark of solemn respect for the victims of the coronavirus pandemic, by the authority vested in me as President of the United States by the Constitution and the laws of the United States of America, I hereby order that the flag of the United States shall be flown at half-staff at the White House and upon all public buildings and grounds, at all military posts and naval stations, and on all naval vessels of the Federal Government in the District of Columbia and throughout the United States and its Territories and possessions until sunset, May 24, 2020. I also direct that the flag shall be flown at half- staff for the same length of time at all United States embassies, legations, consular offices, and other facilities abroad, including all military facilities and naval vessels and stations. IN WITNESS WHEREOF, I have hereunto set my hand this twenty-first day of May, in the year of our Lord two thousand twenty, and of the Independence of the United States of America the two hundred forty-fourth.

[FR Doc. 2020–11539 Filed 5–26–20; 11:15 am] Billing code 3295–F0–P

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Proclamation 10040 of May 21, 2020

Prayer for Peace, Memorial Day, 2020

By the President of the United States of America

A Proclamation Since the first shots fired in the Revolutionary War, Americans have answered the call to duty and given their lives in service to our Nation and its sacred founding ideals. As we pay tribute to the lives and legacies of these patriots on Memorial Day, we also remember that they sacrificed to create a better, more peaceful future for our Nation and the world. We recommit to realizing that vision, honoring the service of so many who have placed love of country above all else. As Americans, we will always defend our freedom and our liberty. When those principles are threatened, we will respond with uncompromising force and unparalleled vigor. Generation after generation, our country’s finest have defended our Republic with honor and distinction. Memorials, monu- ments, and rows of white crosses and stars in places close to home like Arlington, Virginia and Gettysburg, Pennsylvania, as well as far-flung battle- fields in places like Flanders Field in Belgium and Busan in Korea, will forever memorialize their heroic actions, standing as solemn testaments to the price of freedom. We will never take for granted the blood shed by these gallant men and women, as we are forever indebted to them and their families. This year marks the 75th anniversary of the Allied victories over Nazi Germany and Imperial Japan in World War II. As we commemorate these seminal events, we also remember the tremendous cost at which these victories came. More than 400,000 souls of the Greatest Generation perished during this titanic struggle to liberate the world from tyranny. In his address to the Nation on Japan’s surrender, President Truman’s words remind us all of our enduring obligation to these patriots for their sacrifice: ‘‘It is our responsibility—ours the living—to see to it that this victory shall be a monument worthy of the dead who died to win it.’’ As we pause to recall the lives lost from the ranks of our Armed Forces, we remain eternally grateful for the path they paved toward a world made freer from oppression. Our fallen warriors gave their last breath for our country and our freedom. Today, let us pause in quiet reverence to reflect on the incredible dedication of these valiant men and women and their families, invoking divine Provi- dence as we continue pursuing our noble goal of lasting peace for the world. In honor and recognition of all of our fallen heroes, the Congress, by a joint resolution approved May 11, 1950, as amended (36 U.S.C. 116), has requested the President issue a proclamation calling on the people of the United States to observe each Memorial Day as a day of prayer for permanent peace and designating a period on that day when the people of the United States might unite in prayer. The Congress, by Public Law 106–579, has also designated 3:00 p.m. local time on that day as a time for all Americans to observe, in their own way, the National Moment of Remembrance. NOW, THEREFORE, I, DONALD J. TRUMP, President of the United States of America, do hereby proclaim Memorial Day, May 25, 2020, as a day of prayer for permanent peace, and I designate the hour beginning in each

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locality at 11:00 a.m. of that day as a time when people might unite in prayer. I further ask all Americans to observe the National Moment of Remembrance beginning at 3:00 p.m. local time on Memorial Day. I also request the Governors of the United States and its Territories, and the appropriate officials of all units of government, to direct that, on Memorial Day, the flag be flown at half-staff until noon on all buildings, grounds, and naval vessels throughout the United States and in all areas under its jurisdiction and control. I also request the people of the United States to display the flag at half-staff from their homes for the customary forenoon period. IN WITNESS WHEREOF, I have hereunto set my hand this twenty-first day of May, in the year of our Lord two thousand twenty, and of the Independence of the United States of America the two hundred and forty- fourth.

[FR Doc. 2020–11542 Filed 5–26–20; 11:15 am] Billing code 3295–F0–P

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Reader Aids Federal Register Vol. 85, No. 102 Wednesday, May 27, 2020

CUSTOMER SERVICE AND INFORMATION CFR PARTS AFFECTED DURING MAY

Federal Register/Code of Federal Regulations At the end of each month the Office of the Federal Register General Information, indexes and other finding 202–741–6000 publishes separately a List of CFR Sections Affected (LSA), which aids lists parts and sections affected by documents published since Laws 741–6000 the revision date of each title. Presidential Documents 3 CFR 335...... 29348 Executive orders and proclamations 741–6000 Proclamations: 7 CFR The United States Government Manual 741–6000 9892 (superseded by 9...... 30825 10034 ...... 30585 Other Services 205...... 27105 10016...... 26585 330...... 29790 Electronic and on-line services (voice) 741–6020 10017...... 26587 340...... 29790 Privacy Act Compilation 741–6050 10018...... 26589 372...... 29790 10019...... 26823 932...... 28841 10020...... 26825 ELECTRONIC RESEARCH 984...... 27107 10021...... 26829 1951...... 30835 World Wide Web 10022...... 26831 4279...... 29593, 31035 10023...... 26833 Full text of the daily Federal Register, CFR and other publications 10024...... 27283 4287...... 29593 is located at: www.govinfo.gov. 10025...... 27285 Proposed Rules: Federal Register information and research tools, including Public 10026...... 27633 9...... 31062 Inspection List and electronic text are located at: 10027...... 27905 271...... 29673 www.federalregister.gov. 10028...... 27907 273...... 29673 10029...... 28469 905...... 27159 E-mail 10030...... 28831 1217...... 27690 1250...... 27163 FEDREGTOC (Daily Federal Register Table of Contents Electronic 10031...... 28833 10032...... 28835 Mailing List) is an open e-mail service that provides subscribers 8 CFR with a digital form of the Federal Register Table of Contents. The 10033...... 28837 10034...... 30585 103...... 29264 digital form of the Federal Register Table of Contents includes 208...... 29264 HTML and PDF links to the full text of each document. 10035...... 30819 10036...... 30821 209...... 29264 To join or leave, go to https://public.govdelivery.com/accounts/ 10037...... 30823 212...... 29264 USGPOOFR/subscriber/new, enter your email address, then 10038...... 31927 214 ...... 27645, 28843, 29264 follow the instructions to join, leave, or manage your 10039...... 31929 235...... 29264 subscription. 10040...... 31931 274a...... 28843, 29264 PENS (Public Law Electronic Notification Service) is an e-mail Executive Orders: 9 CFR service that notifies subscribers of recently enacted laws. 13917...... 26311 1...... 28772 To subscribe, go to http://listserv.gsa.gov/archives/publaws-l.html 13918...... 26313 13919...... 26591 2...... 28772 and select Join or leave the list (or change settings); then follow 13920...... 26595 3...... 28772 the instructions. 13921...... 28471 10 CFR FEDREGTOC and PENS are mailing lists only. We cannot 13922...... 30583 respond to specific inquiries. 13923...... 30587 50...... 26540 72...... 28479 Reference questions. Send questions and comments about the 13924...... 31353 216...... 31667 Federal Register system to: [email protected] Administrative Orders: Memorandums: 217...... 31667 The Federal Register staff cannot interpret specific documents or Memorandum of April Proposed Rules: regulations. 28, 2020 ...... 26315 Ch. 1...... 27332, 29358 Memorandum of May 50...... 28436, 31709 FEDERAL REGISTER PAGES AND DATE, MAY 8, 2020 ...... 28839 52...... 28436 Memorandum of May 72...... 28521 25279–26316...... 1 12, 2020 ...... 29591 430 ...... 25324, 26369, 29352, 26319–26600...... 4 Memorandum of May 30636, 30853, 31065 26601–26834...... 5 20, 2020 ...... 31665 431 ...... 26626, 27929, 27941, 26835–27104...... 6 Notices: 30878, 31065 27105–27286...... 7 Notice of May 7, 1021...... 25338 27287–27644...... 8 2020 ...... 27639 12 CFR 27645–27908...... 11 Notice of May 7, 27909–28478...... 12 2020 ...... 27641 3...... 29839 28479–28840...... 13 Notice of May 7, 50...... 26835 28841–29322...... 14 2020 ...... 27643 217...... 29839 29323–29590...... 15 Notice of May 13, 249...... 26835 29591–29838...... 18 2020 ...... 29321 324...... 29839 29839–30584...... 19 Notice of May 20, 329...... 26835 30585–30824...... 20 2020 ...... 31033 1003...... 28364 30825–31034...... 21 1024...... 25279 31035–31356...... 22 5 CFR 1026...... 26319 31357–31666...... 26 Proposed Rules: Proposed Rules: 31667–31932...... 27 315...... 29348 327...... 30649

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1043...... 28140 Proposed Rules: 51...... 30899 174...... 27810 1045...... 28140 Ch. IV...... 26438 54 ...... 25380, 26653, 30899, 175...... 27810 1048...... 28140 31134, 31616 176...... 27810 44 CFR 1051...... 28140 61...... 30899 178...... 27810 1054...... 28140 64...... 28499 63...... 29914 180...... 27810 1060...... 28140 333...... 28500 64...... 30672 1250...... 30849 1065...... 28140 69...... 30899 1333...... 26858, 26866 45 CFR 1066...... 28140 73...... 28586 1570...... 25313 1068...... 28140 146...... 29164 79...... 30917 Proposed Rules: 1090...... 29034, 29906 149...... 29164 171...... 30673 48 CFR 155...... 29164 172...... 30673 41 CFR 156 ...... 25640, 27550, 29164 Ch. 1...... 27086, 27102 173...... 30673 158...... 29164 1 ...... 27087, 27088, 27098, 174...... 30673 5–203...... 30608 160...... 29637 29666 60–30...... 30608 177...... 30673 164...... 29637 2...... 27087 178...... 30673 170...... 25640 4...... 27101 179...... 30673 42 CFR 171...... 25640 5...... 27088, 29666 180...... 30673 406...... 25508 1355...... 28410 8...... 27088, 29666 Ch. X...... 26915 407...... 25508 9...... 27088, 29666 1201...... 30680 409...... 27550 46 CFR 12 ...... 27088, 27098, 29666 410...... 27550 30...... 27308 13...... 27088, 29666 50 CFR 412...... 27550 150...... 27308 15...... 27088, 29666 413...... 27550 153...... 27308 19 ...... 27088, 27101, 29666 17...... 26786, 29532 414...... 27550 545...... 29638 22 ...... 27087, 27088, 29666 91...... 27313 415...... 27550 25 ...... 27088, 27098, 27101, 216...... 29666 47 CFR 422...... 25508 29666 219...... 27028 423...... 25508 0...... 31390 29...... 27098 300...... 25315, 29666 424...... 27550 11...... 30627 30...... 27088, 29666 635...... 26365, 31414 425...... 27550 15...... 31390 50...... 27088, 29666 648 ...... 26874, 29345, 29870, 431...... 25508 27...... 31704 52 ...... 27087, 27088, 27098, 31706 438...... 25508 64...... 26857, 27309 27101, 29666 660 ...... 27317, 27687, 31707 440...... 27550 76...... 26364 Proposed Rules: 665...... 26622 457...... 25508 96...... 25309 25...... 28596 679 ...... 27158, 29670, 30851 482...... 25508 Proposed Rules: Proposed Rules: 483...... 27550 0...... 29914, 30672 49 CFR 92...... 27698 484...... 27550 1 ...... 26438, 29914, 31616 171...... 27810 622...... 28924, 29916 485...... 25508 2...... 26438 172...... 27810 648...... 27703 600...... 27550 18...... 26438 173...... 27810 660...... 31733

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